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NORTH CAROLINA 

REGISTER 



VOLUME 14 • ISSUE 16 • Pages 1400 - 1491 



February 15, 2000 



RECEIVED 

FEB 1 7 2000 



KATHRINE R. EVERETT 
LAW LIBRARY 



IN THIS ISSUE 

ENR - NPDES Permit 

Cosmetic Art Examiners 

Environment and Natural Resources 

Health and Human Services 

Insurance 

Justice 

Labor 

Medical Examiners, Board of 

Midwifery Joint Committee 

Psychology Board 

Revenue 

Substance Abuse Professional Certification 

State Personnel 

State Treasurer 

Transportation 

Rules Review Commission 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 

Rules Division 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

Telephone (919) 733-2678 

Fax (919) 733-3462 



This publication is primed on permanent, acid-free paper in compliance with G.S. 125-1 1 .13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consult with the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. , 



Rule Notices, Filings, Rejgister, Deadlines., Copies of Proposed Rules, etc. 

Office of Administrative Hearings 

Rules Division 

Capehart-Crocker House (919) 733-2678 

424 North Blount Street (9 1 9) 733-3462 FAX 

Raleigh. North Carolina 27601-2817 



contact: Molly Masich, Director APA Services 
Ruby Creech, Publications Coordinator 



mmasich@oah. state. nc. us 
rcreech(S)oah.state.nc.us 



Fiscal Notes & Economic Analysis 

Office of State Budget and Management 

1 1 6 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 



(919) 733-7061 
(919) 733-0640 FAX 

wplonk@osbm.state.nc.us 



Rule Review and Legal Issues 

Rules Review Commission 
1307 Glenwood Ave., Suite 159 
Raleigh, North Carolina 27605 

contact: Joe DeLuca Jr., Staff Director Counsel 
Bobby Bryan, Staff Attorney 



(919)733-2721 
(919) 733-9415 FAX 



Legislative Process Concerning Rule-making 

Joint Legislative Administrative Procedure Oversight Committee 

545 legislative Office Building 

300 North Salisbury Street (9 1 9) 733-2578 

Raleigh, North Carolina 2761 1 (919) 715-5460 FAX 



contact: Mary Shuping, Staff Liaison 



marys@ms.ncga. state. nc. us 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (919)71 5-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 



NC League of Municipalities 
215 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 



NORTH CAROLINA 
REGISTER 




Volume 14, Issue 16 
Pages 1400 - 1491 



February 15. 2000 



This issue contains documents officially filed 
through Januar>' 25. 2000. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

6714 Mail Service Center 

Raleigh. NC 27699-6714 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III. Director 

Camille Winston. Deputy Director 

Molly Masich. Director of APA Services 

Ruby Creech. Publications Coordinator 

Linda Dupree. Editorial Assistant 

Jessica Flowers. Editorial Assistant 

Dana Sholes. Editorial Assistant 



IN THIS ISSUE 

I. IN ADDITION 

ENR- NPDES Permit 1400 

II. RULE-MAKING PROCEEDINGS 
Environment and Natural Resources 

Environmental Management 1401 

Licensing Boards 
Cosmetic Art Examiners 1401 

III. PROPOSED RULES 
Environment and Natural Resources 

Coastal Management 1421 - 1424 

Health and Human Services 

Social Services 1406 - 1409 

Vocational Rehabilitation Services 1402 - 1406 

Insurance 
Life and Health Division 1409 - 1410 

Justice 

NC Sheriffs' Education and Training 

Standards Division 1410-1412 

Labor 
OSH Division 1412-1421 

Licensing Boards 

Medical Examiners. Board of 1455 - 1456 

Midwifery Joint Committee 1456 - 1458 

Psychology Board 1458 - 1460 

Substance Abuse Professional Certification . 1460-1464 

Revenue 
Corporate Franchise. Income, and Insurance 

Taxes 1431 - 1433 

Departmental Rules 1424 - 1428 

Gross Receipts and Privilege License Taxes . 1428 - 1431 

Individual Income Tax 1433 - 1437 

Inheritance and Gift Tax Division 1427 - 1428 

Motor Fuels Taxes 1451 - 1452 

Property Tax 1452 - 1453 

Sales and Use Tax 1437 - 1451 

Transportation 

Motor Vehicles. Division of 1453 - 1455 

IV. TEMPORARY RULES 
Health and Human Services 

Mental Health. Developmental Disabilities, 

& Substance Abuse Services 1465 - 1466 

State Personnel 

State Personnel Commission 1467 - 1471 

State Treasurer 

Escheats and Abandoned Propert>' 1466 - 1467 

V. RULES REVIEW COMMISSION 1472 - 1479 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1480 - 1488 

Text of Selected Decisions 
99 ABC 1637 1489 - 1491 

VII. CUMULATIVE INDEX 1-94 



Niirlh Cdroliiiii Rci;i.sti'r is publistied semi-monthly for SIM? per year by the Office of Administrative Hearings. 424 North Blount Street. Raleigh. NC 
276(11. (ISSN 1520(16(14) to mail at Periodicals Rates is paid at Raleigh. NC. POSTM.ASTER: Send Address changes to the North Ciirnliiia Rei;ista. 
PO Drawer 27447. Ralemh. NC 2761 1-7447. 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administratiyc Code (NCAC) has four major suhJlvisions of rules. Two of these, titles and chapters, 
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive 
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be 
numerical in order. The other n\'o. subchapters and sections are optional subdivisions to be used by cigencies when 
appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


Acupuncture 


1 





Agriculture 


Architecture 





3 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


X 


7 


Cultural Resources 


Chiropractic Examiners 


10 


K 


Elections 


Employee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Services 


Cosmetic Art Examiners 


14 


1 1 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics/Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control &. Public Safety 


Electrolysis 


19 


15A 


Environment and Natural Resources 


Foresters 


20 


16 


Public Education 


Geologists 


21 


17 


Revenue 


Hearing Aid Dealers and Fitters 


1") 


IX 


Secretary of State 


Landscape Architects 


26 


19A 


Transportation 


Landscape Contractors 


2X 


20 


Treasurer 


Marital and Family Therapy 


31 


*21 


Occupational Licensing Boards 


Medical Examiners 


32 


01 


Administrative Procedures (Repealed) 


Midwifen, Joint Committee 


33 


23 


Community Colleges 


Mortuary Science 


34 


24 


Independent Agencies 


Nursing 


36 


25 


State Personnel 


Nursing Home Administrators 


37 


26 


Administrative Hearings 


Occupational Therapists 


38 


27 


NC State Bar 


Opticians 


40 






Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veierinap, Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 





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IN ADDITION 



TITLE 15A - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 

STATE OF NORTH CAROLINA 

ENVIRONMENTAL MANAGEMENT COMMISSION 

1617 MAIL SERVICE CENTER 

RALEIGH, NORTH CAROLINA 27699-1617 

PUBLIC NOTICE OF INTENT TO ISSUE A STATE GENERAL 
NPDES PERMIT 

Public notice of intent to issue a State National Pollutant Discharge Elimination System (NPDES) General Permit for Point 
Source Discharges of Stormwater associated with the following activities: 

NPDES No. NCG20000() governing the discharge of stomiwater point source discharges associated with establishments 
primarily engaged in assembling, breaking up. sorting, and wholesale trade of scrap metal [standard industrial classification (SIC) 
5093]. Also covered are stonnwater point source discharges from those areas at scrap metal recycling facilities which are used to 
process other scrap materials (plastic, paper, glass, rubber, and textiles) or used for vehicle maintenance activities |SIC 5093]. The 
following activities are specifically excluded from coverage under this General Permit: Stormwater discharges from scrap metal 
recycling facilities that perform on-site processing of fluids (such as solvents or used oil ). batteries, or tires for recycling or reclaim. 
These facilities must instead apply for stomiwater general permit NCGIOOOOO. 

On the basis of preliminarx' staff review and application of Article 21 of Chapter 143 of the General Statutes of North 
Carolina, Public Law 92-500 and other lawful standards and regulations, the North Carolina Environmental Management Commission 
proposes to issue a State NPDES General Permit for the discharges as described above. 

INFORMATION: Copies of the draft NPDES General Permit and Fact Sheet concerning the draft Pemiit are available by 
writing or calling: 

Aisha Lau 

Water Quality Section 

N.C. Division of Water Quality 

1617 Mail Service Center 

Raleigh. North Carolina 27699-1617 

Telephone (919) 733-5083 ext. 578 

Persons wishing to comment upon or object to the proposed detemiinations are invited to submit their comments in writing 
to the above address no later than March 16. 20(X). All comments received prior to that date will be considered in the final 
detemiination regarding pennit issuance. A public meeting may be held where the Director of the Division of Water Quality finds 
a significant degree of public interest in any proposed pennit issuance. 

The draft Pennit. Fact Sheet and other information are on file at the Division of WaterQuality, 5 1 2 N. Salisbury Street. Room 
925. Archdale Building. Raleigh. North Carolina. They may be inspected during nonnal office hours. Copies of the infonnation on 
file are available upon request and payment of the costs of reproduction. All such comments and requests regarding these matters 
should make reference to the draft Pennit Number. NCG20()000 



Date: 1/25/2000 s/s Kerr T. Stevens, Director 

Division of Water Quality 



14:16 NORTH CAROLINA REGISTER February 15, 2000 1400 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings Is a statement of subject matter of the agency's proposed rule making. The agency must 
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a ride. 
Publication of a temporary rule serves as a Notice of Ride-making Proceedings and can be found in the Register under the 
section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings and 
can be found In the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21 .2. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

A Jotice of Rule-making Proceedings is hereby given by the 
1 V DENR - Environmental Management Commission In 
accordance with G.S. 150B-21 .2. The agency shall subscc/uentlx 
publish In the Register the te.xt of the rule(s) It proposes to adopt 
as a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 2D .0521. .053? - Other rules may be proposed in 
the course of the rule-making process. 

Authority for the rule-maliing: G.S. l43-215.3la): 143- 
215.201(aH5): 143-215.201(aH4): 143-215. ]07ia)(5). 



standard when a continuous opacity monitor (COM) is used to 
measure opacity. 

15A NCAC 2D .0535 - To amend Excess Emissions Reporting 
and Malfunctions, to make provisions for startup and shutdown 
(Paragraph (g)) part of the federally approved State 
Implementation Plan. 

Comment Procedures: Comments should be sent to and 
additional Information concerning the proposals may be 
obtained by contacting Mr. Thomas C. Allen, Division of Air 
Qualit}.272S Capital Blvd.. 1641 Mall Service Center. Raleigh, 
NC 27699-1641. or at (919) 733-1489 (phone). (919) 715-7476 
(fa.x). 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 



Statement of the Subject Matter: Rule 15A NCAC 2D .0521, 
Control of Visible Emissions, may be amended to revise the 
methodology for determining compliance with the opacity 
standard when opacity is measured with a COM. The current 
rule was written to measure opacity with visual observations by 
a person. The rule allows the opacity standard to be exceeded 
for one six-minute period In any hour and for four six-mlmtte 
periods in any 24-hour period. This methodology may not be 
suited for measuring opacity with a COM. Also, measurements 
made during startup, shutdown, and malfunctions may be 
included when a COM Is used to measure opacity. 
15A NCAC 2D .0535 - The startup and shutdown provisions In 
Paragraph (g) of ISA NCAC 2D .0535 have been disapproved 
by the EPA as part of the State Implementation Plan because it 
does not satisfy the EPA 's criteria. To satisfy the EPA 's criteria 
for approval, the provisions need to be rewritten to declare the 
excess emissions during startup and shutdown are In violation 
unless the owiter or operator of the source can demonstrate that 
the excess emissions are unavoidable. Under the current rule, 
such excess eniissions are considered a violation only If the 
owner or operator cannot demonstrate that the excess emissions 
are unavoidable when ree/uested to do so by the Director of the 
Division of Air Quality. This Rule Is proposed for revision to 
make It satisfy the EPA's criteria so that It can be approved as 
part of the federally approved State Implementation Plan. 

Reason for Proposed Action: 75.4 NCAC 2D .0521 - To 
change the method for determining compliance with the opacity 



CHAPTER 14 - BOARD OF COSMETIC ART 
EXAMINERS 

* Jotice of Rule-making Proceedings is hereby given by the 
1 V NC State Board of Cosmetic Art E.xamlners in accordance 
with G.S. 150B-21 .2. The agency shall subsequently publish in 
the Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

21 NCAC 14A .0101: 14P .0103: .0105: .0107-.0108: .0115. 
Other rules may be proposed In the course of the rule-making 
process. 



Authority for the rule-making: G.S. 



Statement of the Subject Matter: Rules for teaching 
cosmetology in an approved beauty school. 

Reason for Proposed Action: To update the curriculum for all 
schools. 

Comment Procedures: U ritten comments concerning this rule- 
making action must be submitted to Dee Williams, Rule-Making 
Coordinator. NC State Board of Cosmetic Art E.xamlners. 1201 - 
110 From St.. Raleigh. NC 27609. 



1401 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior t(i the publication of text, the agency published a Notice 
of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the publication 
date, or uiuil the public hearing, or a later date if specified in the notice by the agency. The required comment period is 60 days 
for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory reference: G.S. 150B- 
21.2. 



TITLE 10 - DEPARTMENT OF HEALTH AND 
HUMAN SERVICES 

Notice is hereby giyen in accordance with G.S. I50B-21 .2 
that the Department of Health and Human Services, 
Division of Vocational Rehabilitation Services intends to amend 
rulescitedas 10NCAC20B .0201 - .0211. .0221. .0223. .0225. 
Notice of Rule-making Proceedings was published in the 
Register on October 1. 1999. 



Fiscal Note: 

State Local Sub 



y 



None 

/ 10 NCAC 20B .0201:0209 
.0211, .0221, .0223. .0225 
10 NCAC 20B .0210 



CHAPTER 20 - VOCATIONAL REHABILITATION 



SUBCHAPTER 20B - PROCEDURES 



Proposed Effective Date: ./uly J. 2000 

A Public Hearing will be conducted at 4:00 p.m. on March 1 . 
2000 at the Main Conference Room, Division of Vocational 
Rehabilitation Services, 805 Ruggles Drive, Dorothea Dix 
Campus, Raleigh, NC. 

Reason for Proposed Action: (a) On August 7, 1998 the 
Federal Workforce Investment Act of 1998 (P.L. 105-220) M'as 
enacted. Included in this Act were the 1998 Amendtnents to the 
Rehabilitation Act. Section 102(c) of the Rehabilitation Act 
Amendtnents made several changes to the requirements for 
states to establish procedures for impartial due process 
hearings. One change required the State to offer a mediation 
process when an appeal was requested and both parties agree 
to mediation. Most of the rule amendments are being made to 
specify the Division's mediation process, (b) Rule .0206 is 
being amended upon the recommendation of the Vocational 
Rehabilitation Coimcil that hearing officers for specific hearings 
be selected on a random basis without replacement. This 
recommendation was made as a means of removing some of the 
difficulty of selecting a hearing officer who was mutually agreed 
upon by the parties and this method of selection is allowed by 
federal regulations, (c) Rule .0207 is being amended to allow 
more flexibility in the extension of time for the appeals hearing 
because applicants and clients have requested extensions of 
more than the 20 days previously allowed, (d) Other rules are 
being amended to correct reference to federal regulations and 
to clarify when information is sent to the Client Assistance 
Program regarding an individual's appeal. 

Comment Procedures: Comments may be presented orally or 
in writing at the hearing. Oral statements may be limited at the 
discretion of the hearing officer. Written cotnments may also be 
submitted until March 16. 2000 to Jackie Stalnaker. Division of 
Vocational Rehabilitation Sennces, 2801 Mail Service Center, 
Raleigh, NC 27699-2801. To obtain additional information or 
indicate need for alternative communication format contact Ms. 
Stalnaker in writing or by phone (919) 733-3364 or TDD (919) 
733-5924. In addition, a fiscal note is available upon written 
request from the same address. 



SECTION .0200 - CONTESTED CASES: 
ADMINISTRATION REVIEW: APPEALS HEARINGS 

.0201 APPLICABILITY OF RULES 

Except for administrative r eviews reviews, mediation, and 
appeals to be conducted according to tiie provisions of Rules 
.0202 througii .0228 of this Section, appeals concerning the 
administration of the rules in this Chapter shall be filed and 
conducted in accordance with G.S. 1508 and 10 NCAC IB 
.0200. 

Authority G.S. 143-546.1: 150B-1 : 34 C.F.R. 361 .57: PL. 105- 
220, s. 102(c). 

.0202 WRITTEN INFORMATION FOR APPLICANTS 
AND CLIENTS 

(a) All applicants for and clients receiving vocational 
rehabilitation services shall be informed of the opportunities for 
an administrative r eview review, mediation and an appeal 
available under 34 C.r.R. 361.48 Sec. 102(c) of the 
Rehabilitation Act and Rules .0202 through .0228 of this 
Section. 

(b) Written information shall be provided to all applicants and 
clients informing them: 

( 1 ) of their right to an appeals hearing when they are 
dissatisfied with any determinations made by the 
division concerning the furnishing or denial of 
services; 

(2) that they have the option of seeking resolution of the 
issue through an administrative review prior to an 
appeals hearing: 
thai mediation mav be available to resolve their 



t4li6j 



problems jf ihe Division aizrees to jjj^ 

that the rehabilitation counselor, rehabilitation 

coordinator or other designated staff of the division 

will assist them in preparation of the written request 

for an administrative review^ mediation, and/or 

appeal; and will inform them 

of the name and address of the appropriate regional 

director to whom the request shall be submitted: and 

that they may receive assistance with the resolution of 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1402 



PROPOSED RULES 



their problems through the Client Assistance Program, 
(c^ At the time of initial a p plica ti o n , all a p plicants shall b e 
informed verbally of the name and add r ess of the r egional 
di r ecto r to whom requests for administrative reviews and/or 
app eals shall be s ub m itt ed. At the time an applicant or client 
wishes to subm i t a r equ e st for an administrative review and/o r 



appeals hea r ing, the same in fo r mat i on shall be furn i shed in 
w r iting to the i ndividual. 

(c) The notifications required in Paragraph (b) of this Rule 
shall be provided in wrilintz: 

( 1 ) at the lime an individual applies for services; 



i2l 
ill 



at the time the individualized plan for employment for 
the individual is developed: and 
upon reduction, suspension, or cessation of vocational 
rehabilitation services for the individual. 



Authority G.S. 143-546.1: I50B-1: 34 C.F.R. 361 .57: P.L. 105- 
220, S.102 (c). 

.0203 REQUEST FOR ADMINISTRATIVE REVIEW 
AND APPEALS HEARING 

(a) When any applicant for or client receiving vocational 
rehabilitation services wishes to request an administrative r eview 
review, mediation, and an appeals hearing or only an appeals 
hearing, the individual shall submit a written request to the 
appropriate regional director of the Division. 

(b) The request shall indicate if the individual is requesting: 

( 1 ) an administrative r eview review, mediation, and an 
appeals hearing to be scheduled concurrently: or 

(2) an administrative review and an appeals hearini; to be 
scheduled concurrently: or 

^ Q} only an appeals hearing. 

(c) The request shall contain the following information: 

{ 1 ) the name, address and telephone number of the 
applicant or client: and 

(2) a concise statement of the determination(s) made by 
the rehabilitation staff for which an administrative 
review review, mediation, and appeals hearing or only 
the appeals hearing is being requested and the manner 
in which the person's rights, duties or privileges have 
been affected by the determination(s). 

(d) The Division shall not suspend, reduce, or temiinate 
services being provided to a client under an ind i vidualized a 
written individualized plan for employment (IPE) r ehabilita t ion 
prog r am (IWRP ) pending final resolution of the issue through 
either mediation, an appeals hearings or an administrative review 
unless the individual or the individual's representative so 
requests, or the Division has evidence that the services have 
been obtained through misrepresentation, fraud, collusion, or 
criminal conduct on the part of the individual. 

Authority G.S. 143-546.1: 150B-1 : 34 C.F.R. 361 .57: P.L. 105- 
220. s. 102(c). 

.0204 DIVISION ACTIONS IN RESPONSE TO 
REQUEST 

(a) Upon receipt of a request for an appeals hearing, the 
regional director shall immediately forward the original request 



to the Division's Chief of Operations who will arrange for the 
provision of information about the possibility of mediation to the 
individual and the appointment of a hearing officer to conduct 
the appeals hearing. , 

(b) If the individual has requested an administrative review in 
addition to an appeals hearing, the regional director shall: 

( 1 ) make a decision to conduct the administrative review 
or appoint a designee to conduct the administrative 
review who: 

(A) has had no previous involvement in the issues 
currently in controversy: 

(B) can conduct the administrative review in an 
unbiased way: and 

(C) has a broad working knowledge of the 
Division's rules, federal regulations governing 
the program, and the State Plan for Vocational 
Rehabilitation Services or Independent Living 
Services (as appropriate): and 

(2) proceed with, or direct the designee to proceed with, 
an administrative review according to the provisions 
of Rules .0205, .0208, and .0209 of this Section. 

(c) The regional director shall send the applicant or client 
written acknowledgment of receipt of the request and inform the 
individual that additional information will be sent regarding the 
possibility of mediation and the administrative review and 
appeals hearing or only the appeals hearing. 

(d) The regional director shall provide the Chief of 
Operations and the Client Assistance Program [if the Client 
Assistance Program js assisting the individual with the case) 
with a copy of the request and the response to the request. 

Authorities. 143-546.1:1508-1: 34 C.F.R. 361 .57: P.L. 105- 
220, s. 102(c). 

.0205 SCHEDULING AND NOTICE OF 
ADMINISTRATIVE REVIEW 

(a) If an administrative review is to be conducted, the regional 
director or designee shall: 

( 1 ) set a date, time and place for the administrative 
review: 

(2) send written notification by certified mail to the 
applicant or client and the individual's parent, 
guardian or representative, as appropriate, of the date, 
time and place for the administrative review at least 
five days prior to the administrative review: 

(3) advise the applicant or client in the written notice that 
a hearing officer will be appointed by the Division to 
conduct a hearing if the matter is not resolved in the 
administrative review and that the applicant or client 
will also receive additional information regarding 
tnediation rf mediation has been requested and a 
written notice from the hearing officer regarding the 
formal appeals hearing which v/ill be held after the 
administrative review and mediation : and 

(4) notify the Director of the Client Assistance Program 
(CAP) and other individuals to be involved in the 
administrative review of the request and the date, time 
and place for the administrative review. This 



1403 



NORTH CAROLINA REGISTER 



Eebruary 15, 2000 



14:16 



PROPOSED RULES 



notification may he by phone or in writing. 
(b) Prior to the administrative review, the regional director or 
designee shall review all previous decisions and casework 
related to the applicant or client and seek whatever consultation, 
explanation, documentation, or other infomialion that is deemed 
necessary, utilizing the Division's CAP Director as appropriate. 

Authority G .S. l43-54b.l : 1 50B-I : .U C .F .R. 361 .57 : P L. 105- 
220. s. }02(c). 

.0206 APPOINTMENT OF HEARING OFFICER AND 
MEDIATOR 

Upon receipt of the applicant's or client's request for mediation 
and an appeals hearinu or only an appeals hearing from the 
regional director, the Chief of Operations shall arrange for the 
Coordinator of Rules and Policy Development to appoint a 
qualified mediator if mediation has been requested and the 
a pp ointment of an impartial hearing officer. The hearing officer 
shall be selected on a random basis without replacement from 
who is i n the pool of persons qualified as defined in P .L. 102- 
5f^. Section 7{^H\6} ot' the Rehabilitation Act of 1973, 29 
U.S.C. §720, et.seq.. as amended, and who is mutually agreed 
u p on by the Di r ecto r and the ind i vidual o r the individual's 
r e pr esentative. 

Authority G.S. 143-546.1 : 150B-1 : 34 C.F.R. 361 .57: P.L. 105- 
220, s. 102(c). 

.0207 SCHEDULING AND NOTICE OF MEDIATION 
AND APPEALS HEARING 

( a ) If mediation is requested, the mediation shall take place 
prio r to the appeals hearing and shall be conducted according to 
Rule .02 10 of this Section. 



ttr>(b) The hearing officer shall schedule the formal appeals 
hearing, to be held withm 45 days of receipt of the original 
request by the applicant or client as described in Rule .0203 of 
this Section: unless the Coordinator of Rules and Policy 
Development has extended the time for the hearing for a specific 
period of time upon written agreement of both parlies or the 
hearing officer grants an extension under Subparagraph (d)(4) of 
this Rule. 



<-bl(c) The hearing officer shall provide the applicant or client 
and the division written notice of the date, time and place of the 
hearing and the issue(s) to be considered at least 10 days prior 
to the hearing. A copy of the notice shall be sent to the Client 
Assistance Program: rf CAP is involved in the case. 

tr-)(d) The notice shall inform the applicant or client and the 
division: 

( 1 ) of the procedures to be followed in the hearing; 

(2) of the particular sections of the statutes, federal 
regulations, state rules, and state plan involved; 

(3) of the rights of the applicant or client as specified in 
.34 C.F.R. 3 61.48(c)(2); 361..S7(b)( I )-(4); 

(4) that the hearing officer may extend the time for the 
hearing by 20 days if the parties jointly agree to a 
specific extension of time delay and submit a written 
statement to that effect to the hearing officer; and 

(5) that the hearing may be cancelled if the matter is 



resolved in an administrative r eview, review or 

through mediation. 
ftH(e) Notice shall be given personally or by certified mail. 
If given by certified mail, it shall be deemed to have been given 
on the deliveiy date appearing on the return receipt. 

Authorin- G.S. 143-546.1: 150B-1: 34 C.F.R. 361.57: P.L 
s. 102(c). 

.0208 ADMINISTRATIVE REVIEW 

(a) Within 15 days of the original request for an 
administrative review by the applicant or client, the regional 
director or designee shall hold the administrative review with the 
applicant or client; the individual's parent, guardian or 
representative, as appropriate; the CAP Director, as appropriate; 
and other individuals deemed necessary by the regional director 
or designee. 

(b) Within five working days of the administrative review, the 
regional director or designee shall make a decision and notify the 
applicant or client and others using the following procedures; 

( 1 ) compile a written report of the administrative review 
outlining the purposes of the administrative review, 
the participants, the decision that was reached, and the 
rationale for the decision; 

(2) send the written report containing the decision to the 
applicant or client by certified mail with return receipt 
requested, with a copy being placed in the individual's 
official case record, and copies being forwarded to the 
Chief of Operations and the CAP director jt CAP is 
involved ; and 

(3) provide instructions to the applicant or client of steps 
that may be taken in response to the decision and the 
deadline for the responses. A form indicating 
agreement with the decision and requesting that the 
hearing be cancelled shall be included for the 
applicant's or client's signature if the individual agrees 
with the decision. 

(c) In situations where the issue currently in controversy 
involves action taken by the central office of the Division, the 
Chief of Operations or a designee of the Chief of Operations 
shall be responsible for the duties related to the administrative 
review that are prescribed for the regional director ui these 
Rules. 

Authority G.S. 143-546.1 : 150B-1 : 34 C.F.R. 361 .57: P.L. 105- 
220. s. 102(c). 

.0209 RESPONSE TO ADMINISTRATIVE REVIEW 
DECISION 

(a) If the applicant or client is satisfied with the decision 
resulting from the administrative review, the individual shall 
sign the form described in Rule .0208(b)(3) of this Section and 
submit it to the regional director within five days of receipt of 
the decision. The regional director shall inform the Chief of 
Operations of the request to cancel the appeals hearing 
immediately and forward the form to the Chief of Operations 
who shall submit it to the hearing officer. 

(b) If the hearing officer does not receive a written request 



14:16 



NORTH CAROLINA REGISTER 



February 15. 2000 



1404 



PROPOSED RULES 



from the applicant or client that the hearing be cancelled, the 
heainng shall be conducted as scheduled unless negotiations 
produce a settlement that is satisfactory to both parties prior to 
the hearing. 

(c) If the hearing is cancelled, the hearing officer shall send 
the applicant or client and the Division written notice of the 
cancellation in the same manner as required for notice of the 
hearing in Rule ■0207t^(e) of this Section. A copy of the notice 
of cancellation shall be sent to the Client Assistance P r og r am. 
Prouram it' CAP js involved. 

Autlwntx G.S. J4J-54(}.J : J50B-1: 34 C.F.R. 361 .57: PL. 105- 
220. s. 102(c). 

.0210 MEDIATION 

In s i tuations whe r e the i ssue currently in controve r sy involves 
action taken by the cent r al off i ce o f the divis i on, the deputy 
directo r or a designee of the deputy di r ector shall be r es p onsible 



fo r the dut i es i 



. pr esc rib ed to r Ine r egional Oi r ecto r in t nes e r ules. 

(a) If both parties atiree to mediation, the mediation shall take 
place prior to the appeals hearine. 

(b) Mediation shall not be used to deny or delay an 
individual's rieht to speedy complaint resolution. The mediation 
shall be completed m a period that also allows for completion of 
an appeals hearim; after mediation within the 45-dav time 
required under 34 C.F.R. 361.57(b) unless both parties sign a 
written agreement for a specific extension of time. 

(c) An individual to conduct the mediation shall be selected 
from a list of qualified and impartial mediators that is maintained 
by the Division. Individuals on the list of qualified mediators 
shall: 

( 1) be certified by the N. C Dispute Resolution 
Commission or the Mediation Network ot North 
Carolina: and 

(2) be knowledgeable regarding the laws. Federal 
regulations and State rules governing the provision of 
vocational rehabilitation and independent living 
services. 

(d) Each mediation session shall be scheduled in a timely 
manner and held in a location that is convenient to the parties 
involved. 

(e) The Division shall bear the cost of the mediation. 

(fl Parties involved shall sign a confidentiality pledge prior to 
the process indicating that discussions which occur during the 
mediation process shall be confidential and ma\' not be used as 
evidence in any subsequent appeals hearing or civil proceeding. 
No evidence that is otherwise discoverable shall be inadmissable 
merely because it is presented or discussed during mediation. 

(g) If an agreement is reached during mediation, it shall be in 
writing and signed by both parties and the mediator. 

Authority G.S. 143-546.1: 150-1: 34 C.F.R. 361.57: P.L. 105- 
220, s. 102ic). 

.0211 PROCEDURES GOVERNING HEARING 

The appeals hearing shall be conducted according to the 
provisions of 34 C.F.R. 301.48 (c)(2)(i) and (ii) and (d) 34 
C.F.R. 361..'S7(b)(l)-(3) and {12) and according to Rules .02 1 2 



through .0222 and Rule .0225 of this Section. 

Aiahority G.S. 143-546.1 : 150B-1: 34 C.F.R. 361 .57: P.L. 105- 
220. s. 1021c). 

.0221 CONDUCT OF HEARING 

(a) The hearing officer shall have complete control over the 
hearing, including: 

( 1 ) the responsibility of having a record made of the 
hearing. 

(2) the administration of oaths and affirmations, 

(3) recognition of speakers. 

(4) prevention of repetitious presentations, and 

(5) general management of the hearing. 

(b) The hearing officer shall conduct the hearing in a manner 
that will provide the applicant or client the rights required by 34 
C.F.R. 36 1.48(0(2 )(ii) 34 C.F.R. 36l.57(bH3) . 

(c) The hearing shall not be open to the public. 

Authority G.S. 143-546.1 : 150B-1: 34 C.F.R. 361.57: P.L. 105- 
220. s. 102(c). 

.0223 HEARING OFFICER'S DECISION 

Following the hearing, the hearing officer shall make and 
issue a decision as specified in 34 C.F.R. 36l.48(c)(2)(iii) 34 
C.F.R. 361.57(b)(4) . The decision shall be given to the 
applicant or client personally or by certified mail. If given by 
certified mail, it shall be deemed to have been given on the 
deliver)' date appearing on the return receipt. 

Authority G.S. 143-546.1 : 150B-1: 34 C.F.R. 361 .57: P.L. 105- 
220. s. 102(c). 

.0225 EXTENSIONS OF TIME 

(a) Reasonable time extensions may be granted for the 
procedures in these rules for good cause shown at the request of 
a party or at the request of both parties except for: 

( 1 ) the time for continuation of services during mediation, 
an appeals hearing or an administrative review as 
specified in Rule .0203(d) of this Section: 

(2) the time for conducting the appeals hearing as 
specified in Rule .0207ttr)(b] of this Section which 
may be extended only as specified in Rule .0207ta)(b) 
and tr-)(d) (4) of this Section: 

(3) the time for issuance of the written notice of the 
formal appeals hearing as specified in Rule 
.0207tb)ic] of this Section: 

(4) the time for the direc t or's no t ice of to request a 
review of the hearing officer's decision as specified in 
Rule .0224tr>(a) of this Section: and 

(5) the time for the division di r ec t or's reviewing official's 
issuance of a final decision as specified in Rule 
.0224(d) of this Section, which may be ex t ended only 
if t he applican t or client reques t s an ex t ens i on fu r 
good cause. 

(b) When an extension of time is being granted by the person 
conducting the administrative review review, mediation, or by 
the hearing officer, consideration shall be given to the effect of 



1405 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



the extension on deadlines tor other steps in the administrative 
review review, mediation, and appeals process. 

AiithorlryG.S. 143-540.1: 150B-1 : 34 C.F.R.3bl .57: PL. 105- 
220. s. 102(c). 

Notice is hereby given in accordance with G.S. 15()B-21 .2 
that the Social Services Commission intends to amend 
ride(s) cited aslO NCAC 41 H .0304: 41 P .0106: 43L .0401 and 
adopt ride(s) cited as 10 NCAC 42E .1503-. 1508: 42Z .1002- 
.1007. Notice of Ride-making Proceedings was published in the 
Register for 10 NCAC 41 H .0304: 41P .0106 on November 15. 
1999: for 10 NCAC 42E .1504-. 1508: 42Z .1002-. 1008 on 
November 15. 1999: and for 10 NCAC 43L .0401 on December 
15. 1999. 



sources. This action is necessary to clarify that services 
originally funded with straight SSBG funds and now funded 
with funds transferred fi-om the Temporaiy Assistance for Needy 
Families (TANF> Block Grant will continue to require financial 
participation matching rates as prescribed in the rule. Any new 
sen'ices funded with transferred funds from TANF will not 
require a financial participation matching rate unless specified 
by the General Assembly. 

Comment Procedures: Anyone wishing to comment on these 
proposed rules should contact Sharnesc Ransome. APA 
Coordinator. Social Senices Commission. NC Division of 
Social Services. 2401 Mail Sen-ice Center. 325 N. Salisbury St. . 
Raleigh. NC 27699-2401. phone 919-733-3055. Verbal 
comments will be heard during the public hearing. Written 
comments must be received by Ms. Ransome no later than 
March 16. 2000. 



Proposed Effective Date: .lul\ 17. 2000. 

A Public Hearing will be conducted at 10:00 a.m. on March 8. 
2000 at Edgecombe Community College, 2009 West Wilson 
.Street. Board Room. Tarboro. NC 27886. 

Reason f or Proposed Action: 10 NCAC 41 H. 0304; 41 P. 01 06 

- Rule citations have been changed by the Codifier of Rules: 
therefore 10 NCAC 41H .0304 needs to be amended to 
adequately reflect the current rule citations and reduce potential 
confusion in the delivery of services. In addition, amendment of 
10 NCAC 41P .0106 by the Social Sen-ices Commission will 
ensure that the amendment to the Multiethnic Placement Act of 
1994. entitled the Interethnic Provisions of 1996, is included as 
a requirement in the recruitment of adoptive homes for countx 
departments of social sen-ices and private child-placing 
agencies licensed for adoption services. The implementation of 
the most up to date child welfare practice standards will ensure 
that both county- departments of social sen-ices and private 
child-placing agencies licensed for adoption adhere to MEPA- 
lEP. 

10 NCAC 42E. 1503:1508: 42Z .1002-.1007 - S.L. 1999-334 
requires adult day care programs that provide, advertise, 
market or otherwise promote themselves as providing special 
care sen-ices for persons with Alzheimer's disease or other 
dementias, a mental health disability- or other special needs 
disease or condition to develop written disclosures. The 
disclosure of their policies and procedures on "special care" 
shall he made available to the Department and to individuals 
seeking sen-ices. Additional rules have been developed to 
assure quality implementation of the disclosed specialized care 
in the areas of facility, enrollment, individual service plans, staff 
training and programming. 

10 NCAC 43L .0401 - Prior to 1997. there were not federal 
finds available that were specifically allowed to be transferred 
into the Social Sen-ices Block Grant (SSBG): therefore, the 
applicability of the financial participation matching rate was not 
an issue. The current APA rule on SSBG fiscal management 
was written many years ago and does not provide the flexibiliry 
needed for items funded with transferred funds from alternate 



Fiscal Impact 






State Local 


Sub. 


None 



CHAPTER 41 - CHILDREN'S SERVICES 

SUBCHAPTER 41H - ADOPTION STANDARDS 

SECTION .0300 - FUNCTIONS OF AN ADOPTION 
AGENCY 

.0304 SERVICES TO ADOPTIVE APPLICANTS 

Rules m 10 NCAC 41? .000 6 . .0007, .0008. .0009. .0010. 
■001 Land .0012 .0106. .0107. .0108. .0109. .0110. .0112 and 
.01 13 shall govern the policies for public agencies providing 
adoption services in determining the procedures for recruitment 
of adoptive families, application process, adoptive study, 
notification to adoptive applicants of acceptance or denial of 
application, services to adoptive applicants and families, legal 
process, and record retention, retention, and fees for 
preplacement assessments. 

Authority- G.S. 48-1 et seq.: 143B-153. 

SUBCHAPTER 41P - CHILD-PLACING AGENCIES: 
ADOPTION 

SECTION .0100 - APPLICABILITY 

.0106 ADOPTIVE HOME RECRUITMENT 

The agency shall have a written plan for on-going recruitment 
of adoptive homes for the children it places or plans to place for 
adoption. The plan shall adhere to the provisions of the 
Multiethnic Placement Act of 1 994 as amended bv the 
hiterethnic Adoption Provisions of 1 996 and shall be submitted 
to the Di\ision for its approval. A copy of the Multiethnic 
Placement .Act of 1994 as amending ma\ be obtained from the 
U. S; Department of Heath and Human Sersices. Children's 
Bureau. 300 C Street SW. Washinelon. D.C. 20447. . for on- 
going recrui t men t of adoptive homes for t he children it p laces or 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1406 



PROPOSED RULES 



Ml 



plans to p lace fo r ado pt ion. Th e pla n shall include resou r ces to 
be used, time- r elated goals for ap p lican t r ecmitmen t . a n d any 
lim i tations or r est r ictions that may be inhe r ent t o i ts pr og ra m. 
The p lan shall i n dicate designated staff and funding sources for 
im plementation of the plan. Agencies shall have a p lan which 
actively r ec r uits homes of the same race or ethnic categoiy as 
that of the child r en it se r ves. — An agency may consider the 
cultural, ethnic, o r racial backg r ound of the child and the 
capacity of the prospective adoptive p a ren ts to meet the needs of 
a child as one of the number of factors used to determine the .1505 



be 



tjf 



si i n te r est of the ch i ld but shall not d elay o r deny placement 
a child for adopt i on solely on the bas i s of race, colo r , o r n ational 
o r ig i n o f the ado p tive pa r ent or the child : 

Authority G.S. 48-3-204: 13ID-10.5: 14JB-153. 

CHAPTER 42 - INDIVIDUAL AND FAMILY SUPPORT 

SUBCHAPTER 42E - ADULT DAY CARE 
STANDARDS FOR CERTIFICATION 

SECTION .1500 - SPECIAL CARE FOR PERSONS 

WITH ALZHEIMER'S DISEASE OR OTHER 

DEMENTIA, MENTAL HEALTH DISABILITIES OR 

OTHER SPECIAL NEEDS DISEASES OR 

CONDITIONS IN ADULT DAY CARE CENTERS 

.1503 THE FACILITY SPECIAL CARE SERVICES 

In addition to meetinti general requirenients for facility 
grounds in Rule . 1 00 1 ( a ) of this Subchapter, an adult day care 
center or home providing special care services shall assure that 
participants receivinu this service have access to an outside area. 
This area shall be secured or supervised when participants have 
a physical or cotznitive impainnent and their safety and well- 
being would otherwise be compromised. 

AiithontxG.S. 131D-6: 143B-153: S.L. 1999-334. 

.1504 ENROLLMENT SPECIAL CARE SERVICES 

In addition to meeiini: enrollment policies and procedures 

requirements in Rule .1 lOUa) ot this Subchapter, an adult day 

care center or home shall assure the followini: requirements are 

met for participant enrollment in a special care services program: 

( 1) Disclosure information shall be provided toan 

individual or the responsible party of an individual 

seeking enrollment in a center or home providing 

special care services. The disclosure information 

shall be written and address policies and prcKcdures 

listed in Rule .1502 ot tins Subchapter. 

A qualified health professional shall specify a 

diagnosis, disability or condition on the participant's 

medical report that meets the criteria ot the specific 

group of participants to be served through the special 

care service. 

Any individual with a developmental disabilit\ being 
considered for adult da\ care services programming 
enrollment or discharge must proceed through the 
Developmental Disabilities Single Portal of Entry and 



ill 



13) 



Exit process pursuant to G.S. 122C- 132.1 and 10 
NCAC 16A .0400. 

A participant transferring from standard day care 
services to special care services must meet the criteria 
for that special care service. Family or responsible 
persons shall agree to the transfer decision. 



Authorin- G.S. 131D-6: 143-153: S.L. 1999-334. 



INDIVIDUAL SERVICE PLANS - SPECIAL 
CARE SERVICES 

In addition to meeting individual service plan requirements in 
Rule . 1 101(b) of this Subchapter, an adult day care center or 
home providing special care services shall assure that the 
individual service plan is based on the participant's needs, 
interests and level of abilities. It shall specify programming that 
involves environmental, social and health care strategies to hel p 
the participant attain or maintain the maximum level of 
functioning possible and compensate for lost abilities. 

Authority G.S. 131D-6: 143B-J53: S.L. 1999-334. 

.1506 PROGRAM PLAN - SPECIAL CARE 
SERVICES 

In addition to meeting program plan requirements in Rule 
.1101(c) of this Subchapter, an adult day care center or home 
providing special care services shall assure that the program plan 
provides for a balance ot' activities that promote an optimum 
level of functioning in aU activity areas including personal care 
activities. 

Authority G.S. 131D-b: 143-B-153: S.L. 1999-334. 

.1507 STAFF ORIENTATION AND TRAINING - 
SPECIAL CARE SERVICES 

An adult day care center or home providing special care 
sei-vices shall assure that special care services staff receive at 
least the following orientation and training: 

( 1 ) Prior to assuming responsibility for a special care 
service, the program director shall document receipt 
of training specific to the population(s) to be served. 

(2) The program director shall have m place a written 
plan for training staff that identifies content, sources, 
evaluations and schedules of training. The plan shall 
be reviewed and updated annually. 

(3) The program director shall assure that within a month 
of employment, each staff person assigned to special 
care services shall demonstrate knowledge of the 
needs, interests and levels ot abilities of the 
participants. This shall be documented in the center's 
files. 

(4) Within six months of employment, each staff person 
assigned to special care service shall complete three 
training experiences. The training shall include, but 
not be limited to. population specific techniques for 
communication, behaviors and activities of daily 
living. 

(5) Each staff person working directly with participants in 



1407 



NORTH CAROLINA REGISTER 



February 15. 2000 



14:16 



PROPOSED RULES 



16) 



special care service shall complele a minimum of two 
population specific educational or irainingj 
experiences annualh. 

All trainint: experiences of each staff person assiuned 
to special care service shall be documented in the 
center's files. 



standards set forth in lONCAC 42E .1504. 



AmhorirxG.S. 131D-6: 143B-15J: S.L. 1999-334. 



Authority G.S. 131D-6: 143B-153: S.L. 1999-334. 

.1508 ADDITIONAL REQUIREMENTS FOR 
SPECIAL CARE SERVICES UNIT 

An adult day care center with a special care services unit shall 
assure the follovvinm 



(1) 



13) 
(4) 



15] 



An area desitinated as a special care services unit 

located within a center that also serves other 

participants shall have the unit providiim special care 

separated by. closed doors and located so that other 

participants, visitors or staff do not have to pass 

throuizh the section to reach other areas of the 

buildina. 

A special care services unit separated by closed doors 

from the rest of the adult day center shall meet 

equipment and fumishinu requirements as stated in 

Rule . l(K)3(a)(l).(2),(3) and (b) of this Subchapter. 

At least one toilet shall be located in the unit. 

An area designated as a special care services unit shall 

provide space on the unit for each participant as staled 

in Rule .lUOKdKl) of this Subchapter. 

An area designated as a special care services unit 

within an adult day center shall meet existing adult 

day care staffing ratio requirements as stated in Rule 

■0905(c)(2) of this Subchapter . 



Authority G.S. 131D-6: 143B-153: S.L. 1999-334. 

SUBCHAPTER 42Z - ADULT DAY HEALTH 
STANDARDS FOR CERTIFICATION 

SECTION .1000 - SPECIAL CARE FOR PERSONS 

WITH ALZHEIMER'S DISEASE OR RELATED 

DISORDERS, MENTAL HEALTH DISABILITIES, OR 

OTHER SPECIAL NEEDS DISEASES OR 

CONDITIONS IN ADULT DAY CARE CENTERS 

.1002 THE FACILITY SPECIAL CARE SERVICES 

In addition to meeting the general requirements for facility 
grounds as set forth m W NCAC 42E .1001(a). an adult day 
health home or center or combination center providing special 
care ser\'ices shall assure access to a super\ised or secured 
outside area for special care ser\ice participants. 

Authorm- G.S. 131-D; 143-153: S.L. 1999-334. 



.1004 



The 



INDIVIDUAL SERVICE PLANS - SPECIAL 
CARE SERVICES 

Individual Service Plans _ Special Care Services 

standards as set fonh in 10 NCAC 42E. 1505 shall control for 
this Subchapter. 

Authority G.S. 131D-6: 1438-153: S.L. 1999-334. 

.1005 PROGRAM PLAN - SPECIAL CARE SERVICES 

The Program Plan _ Special Care Services standards as set 
forth in 10 NCAC 42E .1506 shall control for this Subchapter. 

Authority G.S. 131D-6: 143-1.S3: S.L. 1999-334. 

.1006 STAFF ORIENTATION AND TRAINING - 
SPECIAL CARE SERVICES 

The Staff Orientation and Training _ Special Care Services 
standards as set forth in 10 NCAC 42E .1507 shall control for 
this Subchapter. 

Authority G.S.131D-6: 143-153: S.L. 1999-334. 

.1007 ADDITIONAL REQUIREMENTS FOR 
SPECIAL CARE SERVICES UNIT 

(a] An adult day health center or combination center with a 
special care services unit shall assure the following: 

( 1 ) A special care services unit separated by closed doors 
from the rest of the center shall meet equipment and 
furnishing requirements as stated m Rule .0701(a) of 
this Subchapter. 

An area designated as a special care services unit shall 
provide space on the unit for each panicipant as slated 
in Rule .0701(b)(l)(A).(B) of this Subchapter. 
An area designated as a special care services unit 
within the center shall meet existing adult day health 
staffing ratio requirements as stated in Rule .0603 of 
this Subchapter. 

(b) The Additional Requirements for Special Care Services 
Unit standards as set forth in 10 NCAC 42E .15081 1 ).(3) shall 
control for this Subchapter. 

Authority G.S. 131D-6: 143-153: S.L. 1999-334. 

CHAPTER 43 - TITLE XX COMPREHENSIVE 
ANNUAL SERVICES PROGRAM PLAN 

SUBCHAPTER 43L - SOCIAL SERVICES BLOCK 
GRANT 



(2) 



Ql 



.1003 ENROLLMENT SPECIAL CARE SERVICES 

In addition to meeting enrollment and participation 
requirements m Rule .0802 of this Subchapter, an adult dav 
health home or center or a combination center providing special 
care services shall meet the Enrollment Special Care Services 



SECTION .0400 - ADMINISTRATIVE 
REQUIREMENTS 

.0401 FISCAL MANAGEMENT 

The Division of Social Services shall establish the fiscal 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1408 



PROPOSED RULES 



requirements for the Social Services Bloct; Grant as follows: 

( 1 ) Allocation of Funds. Any allocation of Social 
Sen.'ices Block Grant Funds made directly to 
Department of Human Resources divisions or public 
or private agencies by the Department of Human 
Resources is based on the following criteria: 

(a) identified need for the service program: 

(b) established priorities of the department; 

(c) allowability of the program under federal and 
state rules and regulations: 

(d) assessed or potential performance of the 
service program: 

(e) resource utilization; 

(f) availability of funds necessary to secure federal 
financial participation. 

(2) The amount of Social Services Block Grant (SSBG) 
funds allocated by the Department of Human 
Resources through the Division of Social Services to 
each county department of social services will be 
based on the average of the following two factors 
applied to the total amount of SSBG funds available 
for county departments of social services: 

(a) the percentage of the statewide population 
residing within each county; and 

(b) the percentage of the statewide unduplicated 
count of SSI recipients, food stamp recipients. 
AFDC recipients and medicaid eligible 
individuals residing in each county. 

(3) Matching Rates for Financial Participation. The 
following matching rates apply to financial 
participation in services funded by the Social Services 
Block Grant: 

(a) 75 percent financial participation - financial 
participation for provision of any service listed 
in Rule .0201 of this Subchapter is available at 
a rate of 75 percent of the cost of providing the 
service; 

(b) 87-1/2 percent financial participation - 
financial participation for provision of in-home 
services - day care services for adults, 
preparation and delivery of meals, housing and 
home improvement services, and in-home aide 
services (levels I through IV) — is available at 
a rate of 87-1/2 percent of the cost of providing 
the service; 

(c) 90 percent financial participation - financial 
participation for provision of family planning 
services and the family planning component of 
health support services is available at a rate of 
90 percent of the cost of providing the ser\-ice; 

(d) 100 percent financial participation - financial 
participation for provision of child day care 
and developmental day services for children is 
available at a rate of 100 percent of the cost of 
services for those child day care services 
reimbursed from an agency's designated 100 
percent day care allocation. 

(4) Transferred Funds. If funds from the Temporars 



Assistance for Needy Families (TANF) Block Grant 
are transferred to the Social Ser\'ices Block Grant 
(SSBG) for ser\'ices previously funded by SSBG. the 
matching rates outlined in Subparagraph (3) of this 
Rule shall apply. If funds from TANF are transferred 
to SSBG for services not previously funded by SSBG. 
the matching rates as outlined in Subparagraph (3) of 
this Rule shall not apply. 



Authorin-GS. I43B-15J. 



TITLE 11 - DEPARTMENT OF INSURANCE 

Notice is hereby given in accordance with G.S. 150B-21 .2 
that the N.C. Department of Insurance intends to adopt rule 
cited as 1 1 NC AC 12 .0327. Notice of Rule-making Proceedings 
was published in the Register on December 15. 1999. 

Proposed Effective Date: Ju!\ 1. 2000 

A Public Hearing will be conducted at 10:00 a.m. on March 3. 
2000 at the Third Floor Hearing Room. Dohbs Building, 430 N. 
Salisbury Street. Raleigh. NC 27611. 

Reason for Proposed Action: SB 839 authorizes the 
Commissioner .of Insiu-ance to adopt a ride to order interim 
claim payments to health care providers if claims cannot be 
processed in a timely fashion because of the Year 2000 
computer problems. 

Comment Procedures: Written comments should be sent to 
Barbara Morales Burke. Technical Sendees Group. NC 
Department of Insurance, 111 Seaboard Avenue, Raleigh, NC 
27604. Comments will he received through March 16, 2000. 



Fiscal Note: 



State 



Local 



Sub None 
/ 



CHAPTER 12 - LIFE AND HEALTH DIVISION 
SECTION .0300 - GENERAL PROVISIONS 

.0327 Y2K INTERIM CLAIM PAYMENTS 

For the purposes of G.S. 58-2-235(b). a claim shall be 
considered a clean claim if il js submitted in accordance with an 
insurer's claim submission requirements that have been 
communicated to health care providers by the provider 
agreement, the insurer's provider manual, or fonnal letters sent 
to providers explaining claim submission policies. An insurer 
shall not alter its claim submission requirements to make them 
more stringent because the insurer has experienced, or 
anticipates Year-2000 related problems that ina\ interfere with 
its abilit\ to process claims from health care providers. Clean 
claims submitted by health care providers that are not processed 
within 30 da\ s after receipt or in accordance with the insurer's 



1409 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



contractual agreement with the provider are subject to interim 
claim payment requirements as provided in G.S. 58-2-235. 

Authonn G.S. 5S-2-40: 53-2-235. 



TITLE 12 - DEPARTMENT OF JUSTICE 

Notice is hereby given in accordance with G.S. 150B-21 .2 
tluit the NC Sheriffs' Education & Training Standards 
intends to amend rides cited as 12 NCAC JOB .0302 - .0303 and 
.0909. Notice of Rule-making Proceedings was published in the 
Register on December 15, 1999. 

Proposed Effective Date: August 1 . 2000 

A Public Hearing will be conducted at 9:00 a.m on March 1 7, 
2000 at the Justice Building. Room G-1 , Old Education Bldg.. 
114W. Edenton St. , Raleigh , NC 2 7062 . 

Reason for Proposed Action: 

12 NCAC JOB .0302 - Proposed amendment clarifies that 
Division staff can accept completion of High School through 
charter, home schooling, etc. Proposed amendtnent makes no 
change in practice and actually makes it clear that satisfaction 
of the educational requirement is more lenient than the present 
language. 

12 NCAC lOB .0303 - Language made more general in order to 
accommodate the live-scanning of applicant fingerprint cards, 
whereby hard copies of the cards will be phased out over time. 
Proposed amendment does not require any agencies to purchase 
Live Scan, but merely allows the use of that technologxfor those 
agencies that plan to use it. 

12 NCAC lOB .0909 - Sets out that Limited Lecturers certified 
to teach Physical Fitness and Subject Control Techniques in the 
Detention Officer Certification Course (DOCC), can satisfy- 
their instructional requirement by teaching in cither the DOCC 
or Basic Law Enforcement Training Course. The other Limited 
Lecturers must continue to meet their instructional requirement 
by teaching the appropriate topical area in which they are 
certified only in the DOCC. Proposed amendment makes the 
terms and conditions for maintaining certification more lenient 
as it allows for more instances of instruction to satisfy this 
requirement. 

Comment Procedures: Any person interested in this Notice of 
Te.xt may present oral or written comments relevant to the above 
stated subject matter through March 17. 2000. Written 
comments should be directed to .Julia Lohman, Director, 
Sheriffs' Standards Division, Room G-41 , Old Education 
Building, 114 West Edenton St.. P.O. Drawer 629, Raleigh, NC 
27062 



Fiscal Note: 






State Local 


Sub 


None 



CHAPTER 10 - N.C. SHERIFFS' EDUCATION AND 



TRAINING STANDARDS COMMISSION 

SUBCHAPTER lOB - N.C. SHERIFFS' EDUCATION 
AND TRAINING STANDARDS COMMISSION 

SECTION .0300 - MINIMUM STANDARDS FOR 

EMPLOYMENT AND CERTIFICATION AS 

A JUSTICE OFFICER 

.0302 DOCUMENTATION OF EDUCATIONAL 
REQUIREMENT 

(a) Each applicant shall furnish documentary evidence of high 
school, college or university graduation to the employing agency. 
Documentary evidence consists of diplomas from recognized 
public schools or approved private schools, colleges or 
universities which meet approval guidelines of either the North 
Carolina Department of Public Instruction, the Division of Non- 
Public Instruction, or a comparable out of state agency. 

(b) High School diplomas earned through correspondence 
courses are not recognized toward these minimum educational 
requirements. 

(c) Documentary evidence of having passed the General 
Educational Development Test (GEO) shall be satisfied by a 
certified copy of GEO test results or by a copy of the applicant's 
GEO diploma. 

(d) Documentary evidence of the attainment of satisfactory 
scores on any military high school equivalency examination will 
be acceptable as verified by a true copy of the veteran's DD2 14. 

Authority G.S. I7E-4. 

.0303 FINGERPRINT RECORDS CHECK 

(a) Each applicant for certification shall be fingerprinted 
twice using forms s p ecified by the Division . Doth finge rpr i n t 
cards shall be forwa r ded to the State Bureau of Investigation 
(SDI) who will in turn, forwa r d on e ca r d to the Fede r al Bu r eau 
of Livestigation (FBI). A criminal history records check agamst 
State and Federal files will be conducted by both agencies the 
State Bureau of Investigation (SBI) and the Federal Bureau of 
Insestieation ( FBI i based on those prints. Upon receipt from the 
SBI. the Division shall forward ei t her t he original fingerprin t 
card bea r ing t he resul t s of t he criminal his t ory records check, oi ' 
a compu t erized prin t -out bearing a copy of the results of the 
criminal history records check, to the employing agency who 
which shall be retained re t ain t he card or t he compu t ei ' ized 
prin t -out in the applicant's personnel file. 

(b) Certifications issued prior to the receipt by the Division 
of the fingerprint and criminal history records check of state and 
federal files, as conducted by the SBI and FBI. are conditional. 
Such conditional certifications may summarily be suspended by 
the Commission upon receipt from the SBI or FBI of a 
fingerprint or criminal history records check that indicates that 
the officer has been convicted of an offense as specified in 12 
NCAC lOB .0307. 

(c) In compliance with 12NCAC lOB .()404(a){ 1). a justice 
officer shall not be eligible for general certification and shall 
remain on probationary certification until the requirements of 
this Rule have been met. 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1410 



PROPOSED RULES 



AuthorirxG.S. 17E-7. 

SECTION .0900 - MINIMUM STANDARDS FOR 
JUSTICE OFFICER INSTRUCTORS 

.0909 TERMS AND CONDITIONS OF A LIMITED 
LECTURER CERTIFICATION 

(a) An applicant meeting tiie requirements for certification as 
a Limited Lecturer shall, for the first 1 2 months of certification, 
be in a probationary status. The Limited Lecturer Certification. 
Probationary Status, shall automatically expire 12 months from 
the date of issuance. 

(b) The probationar>' instructor certified pursuant to Rule 
.0908(a)(1). (a)(3). (a)(4) and (a)(6) shall be eligible for full 
Limited Lecturer status at the end of the probationary' period if 
the instructor, through application, submits to the Commission: 

(1) either:. 

(A) a favorable recommendation from a school 
director accompanied by certification on a 
commission Instructor Evaluation Form that 
the instructor taught at least four hours in each 
of the topics for which Limited Lecturer 
Certification. Probationary' Status was granted. 
Such instruction must have occurred in a 
commission-accredited detention officer 
training course during the probationary' period. 
The results of the student evaluation must be 
considered by the school director when 
determining the recommendation: or 

(B) a favorable written evaluation by a commission 
or staff member, based on an on-site classroom 
evaluation of the probationary instructor in a 
commission-accredited detention officer 
training course. Such evaluation must be 
certified on a commission Instructor Evaluation 
Form completed where the probationary 
instructor taught a minimum of four hours in 
each topic for which Limited Lecturer 
Certification. Probationary' Status was granted; 
and 

(2) documentation that all other certifications required in 
12 NCAC lOB .0908 remain valid; and 

(3) possess a current valid CPR certification. 

(c) The probationar\ instructor certified pursuant to Rule 
■0908(a)(2) and (a)(5i shall be elmible for full Limited Lecturer 
status at the end of the probationary period if the instructor, 
through application, submits to the Commission: 

( 1 ) either: 

(A) a favorable recommendation from a school 
director accompanied by certification on a 
commission histructor Evaluation Form that 
the instructor tauizht at least four hours in the 
topic area for which Limited Lecturer 
Certification. Frobationar\ Status was granted. 
Such instruction must have occurred in a 
commission-accredited detention officer 
trainintz course or a commission-accredited 
basic law enforcement training course during 



the probationary period. The results of the 
student evaluation must be considered by the 
school director when determining the 
recommendation; or • 

(B) a favorable written evaluation by a commission 
or staff member, based on an on-site classroom 
evaluation of the probationary instructor in a 
commission-accredited detention officer 
training course or a commission-accredited 
basic law enforcement training course. Such 
evaluation must be certified on a commission 
Instructor Evaluation Form completed where 
the probationan. instructor taught a minimum 
of four hours in each topic for which Limited 
Lecturer Certification. Probationary Status was 
granted: and 

(2) documentation that all other certifications required in 
12 NCAC 108 .0908 remain valid; and 

(3) possess a current valid CPR certification. 

tO(d) Full Limited Lecturer Certification for instructors 
certified pursuant to Rule .0908(a)(1). (a)(3). (a)(4) and (a)(6) 
shall be continuous so long as the lecturer submits to the 
Division ever>' two years: 

(1) either: 

(A) a favorable written recommendation from a 
school director accompanied by certification on 
a commission instructor evaluation form that 
the lecturer successfully taught at least four 
hours in each of the topics for which Limited 
Lecturer Certification was granted during the 
previous two-year p e r iod; period. Such 
instruction must have occurred in a 
commission-accredited detention officer 
training course during the probationary period. 
The results ot' the student evaluation must be 
considered by the school director when 
determining the recommendation; or 

(B) a favorable written evaluation by a commission 
member or staff member based on an on-site 
classroom observation of the lecturer while 
teaching a minimum of four hours in each of 
the topics for which Limited Lecturer 
Certification was g r an te d: granted. Such 
instruction must have occurred in a 
commission-accredited detention officer 
training course during the probationary period. 
The results of the student evaluation must be 
considered by the school director when 
detennining the recommendation; and 

(2) a renewal application to include documentation that 
all other certifications required in 12 NCAC lOB 
.0908 remain valid; and 

(3) possess a current valid CPR certification. 

(e) Full Limited Lecturer Certification for instructors certified 
pursuant to Rule .()908(a)(2)and (a)(5) shall be continuous so 
long as the lecturer submits to the Division ever\' two years: 
( 1 ) either: 



(A) a favorable written recommendation from a 



1411 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



school director accompanied by certification on 
a commission instructor evaluation form that 
the lecturer successfully taught at least four 
hours m each of the topics tor which Limited 
Lecturer Certification was granted during the 
previous two-year period. Such instruction 
must have occurred in a commission-accredited 
detention officer training course or a 
commission-accredited basic law enforcement 
training course during the probationary period. 
The results of the student evaluation must be 
considered b\ the school director when 
determining the recommendation: or 
(B) a favorable written evaluation by a commission 
member or staff member based on an on-site 
classroom observation of the lecturer while 
teaching a minimum of four hours m each of 
the topics for which Limited Lecturer 
Certification was granted. Such instruction 
must have occurred in a commission-accredited 
detention officer training course or a 
commission-accredited basic law enforcement 
training course during the probationar\ period. 
The results of the student evaluation must be 
considered by the school director when 
determining the recommendation; and 

(2) a renewal application to include documentation that 
all other certifications required in 12 NCAC lOB 
.0908 remain valid; and 

(3) possess a current valid CPR certification. 

(tH(f) The date Full Limited Lecturer Certification is 
originally issued shall be the anniversary date from which each 
two-year period is figured. 

tr)(g) If a lecturer does not teach a minimum of four hours, 
in each of the topics for which Limited Lecturer Certification 
was granted, during each two-year period following the 
awarding of Full Limited Lecturer Certification, his/lier 
certification automatically expires, and the lecturer must then 
apply for probationary limited lecturer certification and must 
meet all applicable requirements. 



Authority G.S. 17E-4. 



TITLE 13 - DEPARTMENT OF LABOR 

Notice is hereby i;ivcn in accorilaiuc with G.S. 1?()B-21 .2 
that the NCDOL - OSH Division intends to amend tin' rule 
cited as 13 NCAC 7F .0201. Notice of Rule-making 
Proceedings was published in the Register on May 1 , 199b. 

Proposed Effective Date: September 1 . 2000 

A Public Hearing will he conducted at 2:00 p.m. on March I. 
2000 at the North Carolina Department of Labor. Conference 
Room 249. 4 West Edenton Street. Raleigh. NC 27601. 

Reason for Proposed Action: A draft proposal for amendments 



to Subpart U of the OSH A Standards - Blasting - was suhnutted 
to the Division of Occupational Safety and Health by the NC 
U til it}' Contractors Association. The amendments to the 
Standard will update Subpart U to incorporate more current 
blasting terminology, procedures and techniques and to clarify 
the language of the standard. 

Note: A copy of North Carolina's state-specific Blasting 
Standard as amended from 29 CFR 1926 and incorporated 
under 13 NCAC 7F .0201 may he obtained by contacting Lynette 
M. Dean-.lohnson at West Edenton Street. Raleigh. NC 27601. 

Comment Procedures: All interested and potentially affected 
persons or parties are encouraged to make their views known to 
the NC Department of Labor whether in support or objection to 
any or all provisions of this proposal standard. A public 
hearing will be held. Ra/ucsts to pre-register to speak at the 
hearing should be directed to Lynette M. Dean-Johnson. NC 
Department of Labor Legal Affairs at W. Edenton Street, 
Raleigh. NC 27601 or via facsimile (919) 733-4235. Speakers 
will be heard in the order in which they are registered to speak. 
Written conunents must he submitted to Ann B. Wall, at same 
address on or before March 16. 2000. 

CHAPTER 7 - OFFICE OF OCCUPATIONAL SAFETY 
AND HEALTH 

SUBCHAPTER 7F - STANDARDS 

SECTION .0200 - CONSTRUCTION STANDARDS 

.0201 CONSTRUCTION 

The provisions for the Occupational Safety and Health 
Standards for Construction. Title 29 of the Code of Federal 
Regulations Part 1926 promulgated as of January 20. 2000. and 
exclusive of subsequent amendments, are incorporated by 
reference except as follows: 

1 1 ) Subpan C - General Safety and Health Provisions - 
Personal protective equipment, § 1926.28(a) is 
amended to read as follows: "(a) The employer is 
responsible for requiring the wearing of appropriate 
personal protective equipment in all operations where 
there is an exposure to hazardous conditions or where 
this part indicates the need for using such equipment 
to reduce the hazards to the employees." 
(2) Subpart D — Occupational Health and Environmental 
Controls: 

(a) Addition to 29 CFR 1926.54. Nonionizing 
radiation, after subpart (a) to read: 
"(al ) This standard shall apply to all direct or 
reflected laser equipment except 
properly maintained unmodified Class I 
equipment. Class I equipment is 
defined as intrinsically safe lasers 
having less than 0.001 milliwatt power 
and lasers which cannot create eye 
damage if viewed accidentally or which 
present no direct ocular hazard, diffuse 
ocular hazard or fire hazards." 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1412 



PROPOSED RULES 



(b) Incorporation by reference of modified final 

rule for 29 CFR 1926.59. Hazard 

Communication, including Appendices A 

through E, published in 59 FR (February 9. 

1994) pages 6170 - 6184 except that 

1926.59(b)(6)(ii) is amended to read: 

"(ii) Any hazardous substance as such term 

is defined by the Comprehensive 

Environmental Response. 

Compensation, and Liability Act 

(CERCLA) (42 U.S.C. 9601 et seq). 

when regulated as a hazardous waste 

under that Act by the Environmental 

Protection Agency;" 

(3) Subpart E -Personal Protective and Life Saving 
Equipment — addition of (g) to 1 926. 1 04 Safety belts, 
lifelines, and lanyards, as follows: 

"(g) Snaphooks shall be a locking type designed 
and used to prevent disengagement of the 
snaphook keeper by the connected member. 
Locking type snaphooks have self-closing, self- 
locking keepers which remain closed and 
locked until unlocked and pressed open for 
connection or disconnection." 

(4) Subpart U— Blasting and Use of Explosives _ 
additions and amendments to 29 CFR 1926.900 
General Provisions, throwjh 1926.914 Definitions 
applicahlc to this subpart, as follows: 

"ji 1926.900 General provisions: 

(a) The employer shall permit only persons 
ciualified pursuant to §1926.901 to handle and 
use explosives. A blaster shall be in charge of 
each blasting operation; hereafter, referred to 
as the Blaster-in-Charge. 

(b) Smokiim. firearms, sparks, open flame or heat 
producing devices shall be prohibited where 
explosives are being stored, handled, 
transported or used. Exception: This does not 
apply to devices specifically designed to 
initiate detonation. 

(cl See 1 926.90 Kb). 

(d) All explosives shall be accounted for at all 
times. Explosives not being used and not 
attended shall be kept m a magazine or 
container that meets the U.S. Bureau of 
Alcohol, Tobacco and Firearms ( hereafter. 
ATE) storage and access requirements 
contained in 27 CFR Part 55. which is 
incorporated herein by reference, including any 
subsequent amendments. Each employer shall 
maintain an inventor\' and use record of all 
explosives in that employer's possession. The 
employer, or employer authorized person, shall 
compK with all applicable local. Stale and 
federal laws and regulations requiring 
notification of any loss, theft, or unauthorized 
entry into a magazine or container. 

(g) Original containers, ATF Type 2. Type 3, Type 



4 or Type 5 magazines or Institute of Makers 
of Explosives (hereafter. IMF) - 22 containers, 
shall be used for taking detonators and other 
ex plosives from storage magazines to the blast 
site. 

(h) In congested areas and in proximity to a 
structure, railway, highway or an^ other 
installation, the blaster shall take special 
precautions to control the throw of fragments 
and to prevent bodily injury to employees and 
people not working directly on the blasting 
operation. Such special precautions shall be 
taken in the loading, delaying, initiation and 
confinement ot' each blast and shall include 
confinement with mats and/or other methods. 

(i) All blast site employees shall follow the 
directions of the Blaster-in-Charge. All blast 
site employees shall use and adhere to every' 
reasonable precaution to ensure employee 
safety including, but not limited to. visual and 
audible warning signals, flags, or barricades. 

(k) Precautions shall be taken to prevent accidental 
discharge of electric detonators from current 
induced by radar, radio transmitters including 
2-way radios and mobile telephones, lightning, 
adjacent powerlines, dust storms, or other 
sources of extraneous electricity. These 
precautions shall include: 
ill See $ 1 926.906(a) and (b). 

(2) At the approach and progress of an 
electric storm, blasting operations shall 
be suspended and personnel removed to 
an area safe from concussion (shock 
wave). tTving material, or gases from an 
explosion. 

(3) (i) The prominent display of adequate 
signs, warning against the use of mobile 
radio transmitters, (e.g.. telephones and 
2-way radios) on all roads within 1.000 
feet of electric blasting operations. B 
adherence to the 1 .000- foot distance 
would create an operational handicap. 
then a competent person shall be 
consulted to evaluate the particular 
situation, and alternative provisions may 
be made which are designed to prevent 
any premature firing of electric 
detonators. A description of anv such 
alternatives shall be reduced to writing 
and shall be certified by the competent 
person consulted as meeting the 
purposes of this subdivision. The 
description shall be maintained at the 
construction during the duration of the 
work, and shall be available for 
inspection by representatives of the 
Commissioner of Labor. 

(ii) Examples of signs which would 



I4I3 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



meet the requirements of Paragraphs (i} and (k)<3) of this 



Section 



are the following: 



A 

/ \ 

/ \ 

/ \ 

/ \ 

/ BLASTING \ 

\ ZONE / 

\ 1000 FT / 

\ / 

\ / 

\ / 

V 

About 48" x48" 



I I 

I TURN OFF I 

I :-WAY 1 

I RADIO I 



I 



About 42" \ 36" 



(4) Ensurin.i; that mobile transmitters 
including telephones and 2-wav radios 
which are less than 100 feet away from 
electric detonators, in other than original 
containers, shall be deenergized and 
effectively prevented from operating, 
(e.g.. locked): 

(5) Tlte Blaster-in-Charge shall compK with 
the recommendations ot IMF with 
regard to blasting in the vicinity of radio 
transmitters as stipulated m Radio 
Frequency Energy-A Potential Hazard 
in the Use of Electric Blasting Caps. 
IME Publication No. 20. March 1971. 
which is hereby incorporated by 
reference, including an\ subsequent 
editions. 

(1) Empty boxes and associated paper and fiber 
packing materials, which have previously 
contained explosives, shall not be used for any 
purpose, other than that associated with the 
blasting operation. Such boxes, paper and 
packing materials shall be disposed of iU il 
manner that prevents reuse and does not 
constitute a hazard, i.e.. burned. The method 
used for disposal shall comply with all 
applicable local. State or federal laws. 
Delivery and issue of explosives shall only be 



mi 



m 



made by and to authorized persons and into 
authorized magazines or temporary storage or 
handling areas that meet the ATF storage 
requirements contained in 27 CFR 55. 
Blasting operations m the pro\imii\ of 
overhead povser lines, communication lines, 
utility services, or other services and structures 
shall not commence until the operators or 
owners have been notified and measures for 
safe control have been taken. 



(q) All loading and firing shall be directed and 
supervised by the Blaster-in-Charge. 

(r) All blasts shall be fired under the control of a 
blaster, with an appropriate initiation system. 
All blasts shall be fired in accordance with the 
manufacturer's recommendations. 



(s) Buildings used for the mixing of blasting 
agents or water-based explosives shall conform 
to the requirements ot this Section. 

(3) All fuel oil storage facilities shall be 
separated from the mixing plant and 
located m such a manner that [n case of 
tank rupture, the oil will be contained 
and will not drain toward the mixing 
plant building. 

(4) TTie building shall be adequately 
ventilated to prevent ex plosive or 
hazardous substance hazards. 

(5) Heating units may be used m the 
building rf the\ do not depend on 
combustion processes, and are properly 
designed and located to prevent 
explosive or other hazards. All direct 
sources ot heat shall be pro\'ided 
exclusiveh from units located outside 
the mixing building. 

(6) All internal-combustion engines used 
for electric power generation shall be 
located outside the mixing plant 
building, or shall be isolated by a 
firewall and shall be properh Nentilaled 
to prevent explosne or exhaust gas 
hazards to employees. The exhaust 
systems on all such engines shall be 
located so any heat or spark generated 
or emitted cannot be a hazard to any 
materials in or adjacent to the plant. 

lii See.900(s). 



14.16 



NORTH CAROLINA REGISTER 



February 15. 2000 



1414 



PROPOSED RULES 



iu) 



iv) 



UJ See.9()()(.s)(l). 

£2} Sec .9m(s)(2). 

(3) See.9()()(s)(3). 

14] See .9()()(sH4). 

15] See.9(K)(s)(5). 

16] See.90()(s)(6). 

To guard against unauthorized entry or 

initiation of a blast, a blast site shall be 

attended if loading is suspended or loaded 

holes are awaiting firing. Additionally, the 

blast site shall be barricaded, posted, and 

flagged as necessary' to prevent unauthorized 

access. 

No one shall carrs' explosives or explosives 

detonating materials (e.g.. blasting caps. 



(b) 



:i 



iiii 

(b) 



i£l 



id] 



ie] 



detonators, fuse, priiners) of any kind on his or 
her person. This does not prohibit hand- 
carrving or passing such materials when a hole 
is being loaded." 
926.901 Blaster qualifications: 

Blasters shall be able to understand and give 
written and oral orders. 
Blasters and others authorized to handle or 
transport explosive materials or conduct blast 
site activities shall be m sufficiently good 
physical condition to perfortn the work safely 
and not be addicted to. or under the intluence 
of. narcotics, intoxicants, or similar types of 
drugs. 

Blasters shall be qualified, by reason of 
training, knowledge, or experience, in the field 
of transporting, storing, handling, and use of 
ex plosives, and have a working knowledge of 
State, federal and local laws and regulations 
which pertain to explosives. 
Blasters shall be required by the employer to 
furnish evidence satisfactory to the employer 
ot competency in handling explosives and 
performing m a safe manner the type of 
blasting that will be required. 
Blasters shall be know ledgeable and competent 
in the use of each type of blasting method used. 
Pursuant to 29 CFR 1926.21(b). the employer 
shall instruct each employee in the recognition 
and avoidance of unsafe conditions and the 
regulations applicable to the employee's work 
and work environment." 



"§ 1926.902 Surface transportation of explosives: 
(a) Surface transportation of explosives and 
blasting agents shall be m accordance with 
applicable U.S. Department of Transportation 
(hereafter. DOT) regulations. Where DOT 
regulations do not normalK apply (e.g.. off- 
road vehicles), compliance shall be in 
accordance with either the directly related DOT 
regulation or ;^ 192(i.9()2( b) through 
§1926.902(1). as applicable. Where DOT 
regulations do not exist. § 1 926.902(b) through 



(d) 



ill 



ihl 



Ui 



ill 



§1926.902(1) apply. 

Motor vehicles or conveyances transporting 

explosives shall onlv be driven by. and be in 

the charge of. a licensed chiver. The driver 

shal l be familiar with the local. State, and 

Federal regulations governing the 

transportation of explosives. 

Explosives, blasting agents, and blasting 

supplies shall not be transported with other 

materials or cargoes. Blasting caps and 



detonators shall not be transported in the same 
vehicle with other explosiyes unless the 
provisions of the IME Safety Publication No. 
22. "Recommendations for the Safe 
Transportation of Detonators in a Vehicle with 
other Explosive Materials." which is 
incorporated herein by reference including 
subsequent revisions, are followed . 
When explosives are transported by a vehicle 
with an open body, an ATP Type 2. ATP Type 
3. IME 22 or original manufacturer's container 
shall be securely attached to the vehicle to 
contain the cargo. 



Every motor vehicle or conveyance used for 
transporting explosives shall be marked or 
placarded on both sides, the front, and the rear 
with the word "Explosives" in red letters, not 
less than tour inches m height, on white 
background. The motor vehicle or conveyance 
may also display, in such a manner that it will 
be readily visible from all directions, a red t1ag 
1^ inches by 30 inches, with the word 
"Explosives" painted, stamped, or sewed 
thereon, in white letters, at least six inches in 
height. 

Motor vehicles or conveyances carrying 
explosives or blasting agents, shall not be taken 
inside a garage or shop for repairs or servicing. 
In order to prevent explosives hazards. 
explosive materials shall be transported to the 
storage or blast site without delay." 

^ 1926.903 Underground transportation of 

explosives: 

(a) In order to prevent explosives hazards, all 
explosives or blasting agents in transit 
underground shall be taken to the place of use 
or storage without delay. 

(b) The quantity of explosives or blasting agents 
taken to an underground loading area shall not 
exceed the amount estimated by the Blaster-in- 
Charge to be necessary for the blast. 

(h) 'Vehicles containing explosive material shall be 
occupied only by persons necessary for 
handling the explosive material while in transit. 

(m) Any powder car or conveyance used for 
transporting explosives or blasting agents shall 
bear a reflecting sign on each side with the 
word "Explosives". The sign's letters shall be 



1415 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



a minimum of 4 inches in height and shall be 
on a background of sharply contrasting color. 

(n) Compartments for transporting detonators and 
explosives in the same car or conveyance shall 
meet IME-22 container specifications or shall 
be physically separated by a distance of 24 
inches or by a solid partition at least 6 inches 
thick. 

(qi Explosives or blasting agents, not in original 
containers, shall be placed in a nonconductive. 
closed container when transported manualK." 
1926.M()4 Storage ot' explosives and blasting 



agents: 

(a) Explosives and blasting agents shall be stored 
in magazines or containers that meet the 
applicable provisions of the regulations 
contained in 27 CFR Part 55. Commerce in 
Explosives. 

(b) Blasting caps and detonators shall not be stored 
in the same magazine or container with other 
explosives or blasting agents. Surplus primers 
shall be disassembled and components stored 
separately. 

(c) Smoking and open flames shall not be 
permitted withm 50 feet of explosives, 
detonators, or blasting agents storage. 

(d) No explosives or blasting agents shall be 
permanently stored in any underground 
operation until the operation has at least two 
modes of exit. 

(e) Pemianent underground explosive materials 
storage shall be at least .^00 feet from any 
shaft, adit, or active underground vsorking area. 

(f) Permanent underground explosive materials 
storage containing detonators sliall not be 
located closer than 50 feet to any storage 
containing other explosives or blasting agents." 

"§ 1926.905 Loading of explosives or blasting agents: 

(a) Procedures that permit safe and efficient 
loading shall be established by tjie Blaster-in- 
Charge or the employer before loading js 
started. 

(b) Drill holes shall be sufficienlK large to admit 
easy insertion of the cartridges of explosives. 

(c) Tamping shall be done onl\ with non-metal, 
non-sparking tamping poles v\ithout exposed 
metal parts, except that nonsparking metal 
connectors may be used for jointed poles. 
Violent tamping shall be prohibited. The 
primer shall never be tamped. 

(d) No holes shall be loaded except those to be 
fired in the next round of blasting. After 
loading, remaining explosives and detonators 
shall be promptly moved to a safe location and 
attended or stored pursuant to .ATE storage 
requirements contained in 27 CFR Part 55. 

(e) Drilling shall not be staned until ah visible 
butts of old holes are examined for unexploded 



charges, and if any are found, they shall be 
disposed ot' in accordance with §1926.91 1. 
before work proceeds, 
(h) Machines, personnel and tools not specifically 
required for the blasting operation shall be 
removed from the blast site before explosives 
are removed from approved storage or 
transportation vehicles. Blasting operation 
related vehicles or equipment shall not be 
driven over, or near enough to. explosive 
material or initiation systems to come into 
contact with the explosive material or initiation 
systems. Equipment not specificalK needed 
for the final blast shall not be operated within 
50 feet of loaded holes. 
During loading the only activity permitted 
within the blast site shall be that required to 
successfully and safely load the hole. 
Powerlines and portable electric cables for 
equipment being used shall be kept a safe 
distance from explosives or blasting agents. 
The blaster shall assure that cables m the 
proximity of loaded holes are deenergized and 
locked out. Additionally, when using electric 
detonators, the provisions of § 1926.906(b) 

apply- 

Holes shall be checked prior to loading to 
determine depth and conditions. Only those 
holes determined by the Blaster-in-Charge to 
be satisfactory shall be loaded. 
When loading a long line of holes with more 
than one loading crew, the crews shall be 
separated by practical distance consistent with 
safe and efficient operation and supervision of 
crews. 



iii 



Ul 



ik) 



m 



(m) No explosive shall be loaded or used 
underground m the presence of combustible 
gases or combustible dusts, unless the work is 
performed in accordance with the Mine Safety 
and Health Administration (MSHA) standards 
at 30 CER 75 related to such environments, 
which are incorporated herein by reference, 
including subsequent rexisions. and unless the 
explosives have been approved as permissible 
explosives for use in gassy or dusty 
environments by MSH.A. 

(n) No explosives other than those in IME Fume 
Class 1 shall be used. However, explosives 
complying with the requirements of IME Fume 
Class 2 and IME Fume Class 3 ma\' be used rf 
adequate ventilation has been provided to 
prevent explosive or hazardous substance 
hazards to employees. 

(q) A bore hole shall never be sprung when there 
js a risk of a premature detonation of a loaded 
hole. 

(s) Areas in which loading is suspended or loaded 
holes are awaiting firing shall be attended, and 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1416 



PROPOSED RULES 





barricaded, posted, or tlacaed as needed to 




rated capacity. A series circuit shall contain no 




uuard aizainst unauthorized entr\' or initiation. 




more detonators than the limits recommended 


(D 


The blaster shall keep an accurate, up-to-date 




by the manufacturer of the electric detonators 




record of explosives, blastini: aeents. and 




in use. ' 




blastinti supplies used in each blast and shall 


m 


A blaster shall be in charae of the blastina 




keep an accurate runnins; inventory of all 




machines. 




explosives and blastinu agents in the blaster's 


iai 


A blaster shall test blastina circuits for: 




custody. 




( 1 ) Continuity of electric detonator in the 


iMi 


When loadinc blasting asents pneumatically 




blast hole prior to stemmina and 




over electric detonators, semiconductive 




connection of the blastina line. 




delivery hose shall be used and the equipment 




(2) Resistance of individual series or the 




shall be bonded and grounded. 




resistance of multiple balanced series to 


(V) 


Primers shall be made up just before their time 




be connected in parallel prior to their 




of use and at the point of use. 




connection to the blastina line. 


(WJ 


Holes shall not be drilled in a manner that 




(3) Continuity of blasting lines prior to the 




disturbs or intersects a loaded hole." 




connection of electric detonator series. 


'1112 


26.906 Initiation of explosive charces-electric 




(4) Total blastina circuit resistance prior to 


blasti 


nii: 




connectina to the power source. A 


ia) 


Electric detonators shall not be used where 




blastina aalvanometer, or other 




sources of extraneous electricity make the use 




instrument specifically desianed for 




of electric detonators danuerous. Except durinji 




testina blastina circuits, shall be used to 




testing, electronic detonator leu vvires shall be 




conduct these tests. 




kept short-circuited (shunted) until thev are 


(r) 


Whenever the possibility exists that a leadina 




connected into the circuit for firin;;. 




line or blastina wire miaht be thrown over a 


ib) 


If the presence of extraneous electricity is 




live powerline by the force of an explosion, the 




possible, the blaster shall conduct a stray 




total lenath of wires shall be kept too short to 




current survey. No holes shall be loaded usina 




hit the lines, or the wires shall be securely 




electric detonators until the danger of 




anchored to the around. If neither of these 




extraneous electricity is eliminated. 




requirements can be satisfied, a nonelectric 


i£] 


In any sinsjle blast usinn electric detonators, all 




system shall be used. 




detonators shall be of the same style or 


is] 


The blaster shall assure that all connections are 




function, and of the same manufacture. 




made from the bore hole back to the source of 


id) 


Electric initiation shall be carried out by usina 




firina current, and that the leadina wires remain 




blastinu machines or power circuits in 




shorted, except durina testina. and not 




accordance with the manufacturer's 




connected to the blastina machine or other 




recommendations. 




source of current until the blast is to be fired. 


(e) 


When firins a circuit of electric detonators, an 




Only the blaster, or a person under the direct 




adequate uuantitv of delivered current must be 




control of the blaster, shall make lead wire 




available, in accordance with the 




connections or fire the shot." 




manufacturer's recommendations. 


1^19 


26.907 Use of safety fuse: 


mi 


When firina electrically, the insulation on all 


ia] 


A safety fuse that has been hammered or 




firinu lines shall be in liood condition and shall 




injured in any way shall not be used. 




be adequate to prevent voltaue leaks to the 


id] 


Only a cap crimper desian approved for that 




around. 




purpose shall be used for attachina blastina 


iii 


A power circuit used for firina electric 




caps to safet\ fuse. Crimpers shall be kept in 




detonators shall not be arounded. 




aood repair and accessible for use. 


(k) 


In underaround operations there shall be a 


ill] 


Safet\ fuses of at least the follovsina minimum 




"liahtnina" aap of at least 15 feet in the firina 




lenaths shall be used: 




system ahead of the mam firina switch; that is. 


( 1 ) At least a 36-inch lenath for 40-second- 




between this switch and the source of power. 




per-foot safety fuse and 




This aap shall be bridaed by a Hexible jumper 




(2) At least a 48-inch lenath for 30-second- 




cord just before firina the blast. 




per-foot safety fuse. 


ill] 


When firina with blastina machines, the 


ii) 


At least two people shall be present when 




connections shall be made as recommended b\ 




multiple cap and fuse blastina is done by hand 




the manufacturer ot the electric detonators 
used. 


-'im 


liahtinc methods." 




26.908 Use of detonatina cord: 


io] 


The number of electric detonators connected to 


iai 


A detonatina cord consistent with the twe and 




a blastina machine shall not be in excess of its 




physical condition of the bore hole and 



1417 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



mi 



steminini; and the type of explosives shall be 

used. 

Detonatinc cord shall be handled and used in 



the same manner as other explosives. 

(d) Detonatinu cord shall be handled and used with 
care to avoid damaging or severinu the cord 
during and after loading and hooking-up. 
Shock tube shall never he pulled, stretched, 
kinked, twisted, mashed or abused in anv wav 
which could cause the tube to break or 
otherwise malfunction. 

(e) Detonatintz cord connections, shock lube 
connections and splices shall be competent and 
positive in accordance with the manufacturer's 
recommendations. Knot-type or other 
cord-to-cord connections shall be made only 
with detonatintz cord m which the explosive 
core is dry. Down-the-hole shock tube splices 
are prohibited. 

(g) All detonating cord connections, shock tube 
connections and splices shall be inspected 
before firing the blast. 

(h) When detonating cord or shock tube 
m i 1 1 i s e c o n d - d e 1 a y connectors or 
short-interval-delay electric detonators are used 
with detonating cord or shock tube, the practice 
shall conform strictly to the manufacturer's 
recommendations. 

(i) When connecting a detonator to detonating 
cord or shock tube, the detonator shall be tailed 
or otherwise attached securely along the side or 
the end of the detonating cord, with the end ot' 
the detonator containing the explosive charge 
pointed in the direction in which the detonation 
is to proceed. 

(k) Shock tube shall not be connected to the 
initiation device until the blast is to be fired." 

"§ 1926.9(W Firing the blast: 



(a) The Blaster-in-Charge shall establish a code of 
blasting signals and all blast si_te employees 
shall familiarize themselves with and conform 
to the code. As a minimum, the code shall: 

( 1 ) contain audible pre-blast and audible all 
clear signals, and 

(2) contain an emergency method for 
guards, flagmen, or other authorized 
employees to signal "do not lire", and 

(3) prohibit sounding of the aH clear signal 
until the blaster has checked the blast 
site for misfires. 

Table U-1 is an example of a code of 
blasting signals that would meet these 
requirements. 

Further, the Blasler-in-Charge shall 
require the placement of Danger signs 
and posting of the blasting signals when 
personnel not associated with the 
blasting operation are within the blast 



area. 
(b) Before a blast is fired, the Blaster-in-Charge 
shall make certain that all surplus explosives 
are m an area meeting the ATF explosive 
storage requirements contained in 27 CFR 55 
and that all persons are at a safe distance, or 
under sufficient cover. 
Flagmen shall be safelv stationed on highways 



id) 

ie) 



which pass through the blast area so as to stop 
traffic during blasting. 

The Blaster-in-Charge shall fix the time of 
blasting. 

Before firing an underground blast, warning 
shall be given, and all possible entries into the 
blast area, and any entrances to any working 
place where a drift, raise, or other opening js 
about to hole through, shall be carefully 
guarded to prevent entry into the area. The 
Blaster-in-Charge shall make sure that ah 
surplus employees have been removed from the 
blast area and that all personnel are out ot the 
blast area." 

"§ 1926.910 Inspection after blasting: 

(b) Sufficient time shall be allowed, not less than 
1 5 minutes in tunnels, for the smoke and fumes 
to dissipate before returning to the blast site. 
Subsequently, the blaster shall inspect the blast 
site and surrounding rubble for signs of 
misfires. If a misfire \s found, employee 
access to the blast area shall be controlled 
pursuant to j? 1 926.9 1 1 . Wliere fumes, fire, or 
dust are a potential hazard (e.g.. in tunnels), the 
muck pile shall be wetted down prior to general 
employees returning to the blast site." 

"§ 1926.911 Misfires: 

(a) If a misfire is found, the Blasler-in-Charge 
shall invoke sufficient safeguards to exclude all 
employees from the potential blast area. 

(b) No work shall be done except that necessary to 
remove the hazard of the misfire. Only those 
employees necessary to do the work shall enter 
the potential blast area. Only the Blaster-in- 
Charge. and the absolute minimum number of 
competent, experienced personnel necessary to 
assess the situation shall approach the hole to 
inspect the misfire. 

(c) The Blaster-in-Charge shall detennine the 
safest steps for removing the hazard of the 
misfire. During development and 
implementation of these steps, the Blaster-in- 
Charge shall comply with the manufacturer's 
recommendations. Further, the guidelines of 
the SafetN m the Transportation. Storage. 
Handling and Use of Explosive Materials. IMF 
Publication No. 17. which js hereby 
incoiTioraled by reference, including future 
changes, shall be utilized. 

(d) If there are an\' misfires vihile using non- 



14:16 



NORTH CAROLINA REGISTER 



February 15. 2000 



1418 



PROPOSED RULES 



electric systems and materials, all employees 
shall remain out of the potential blast area for 
at least 30 minutes. If electric detonators, shock 
tube, gas tube or detonatinu code systems or 
materials were used and a misfire occurred, the 
vvaitinj: period ma\ be reduced to J_5 minutes. 
In either case, the Blaster-in-Charae shall 



assess the circumstances and invoke a safe 
waitiniz period before allowini; any personnel 
to enter the potential blast area. All lines shall 
be carefully traced and a search made for 
unexploded charges, 
(e) No drillin'j. diizeinL:. or picking shall be 
pennitted until all misfires have been 
detonated or the Blaster-in-Charae approves 
the work." 
"§ 1926.912 Underwater blasting: 
(a) In underwater blasting, no shot sha 



be fired 



(c) 



id} 



without the approval of' the Blaster-in-Charge. 
Only water-resistant detonators and detonating 
cords shall be used for all marine blasting. 
Loading shall be done through a nonsparking 
loading tube when tube is necessary. 
No blast shall be fired while any vessel under 
way is closer than 1.500 feet to the blast site. 
Those on board vessels or craft moored or 
anchored within 1.500 feet shall be notified 
before a blast is fired. 



ua 



(h) 



Note: The warning signals and personnel 
safety provisions of §1926.909 also apply. 
The storage and handling of explosives aboard 
vessels used in underwater blasting operations 
shall be in accordance with the provisions of 
this Standard on handling and storing 
explosives. 
Prior to firing the blast. 



_ the blaster shall 

detennine the method(s) that will be used for 
detecting misfires and take preparatory steps 
(e.g.. noting obvious indications of misfire, 
attaching tloal(s) that will be released by the 
firing, staging underwater cameras, or other 
appropriate means). Misfires shall be handled 
in accordance with the requirements of 
§1926.M11." 

2S 1926.913 Blasting in excavation work under 

compressed air: 

(b) When detonators or explosives are brought into 
an air lock, the onh employees who shall be 
permitted to enter the airlock are the 
powdennan. blaster, lock lender and the 
empknees necessar\ for carr\ing the 
detonators or explosives. No other material, 
supplies, or equipment shall be locked through 
with the explosives. 
See j; 1926.900(a) and §1926.'-)OI. 
The explosives suitable for use in vvet holes 
shall be \\ ater-resistant and shall be IME Fume 
Class 1." 



id) 

m 



"§ 1926.914 Definitions applicable to this Subpart: 

(a) "American Table of Distances" (also known as 
Quantity Distance Tables )- the current edition 
of the American Table of Diiftances for Storage 
of Explosives approved by IME. 

(b) "Approved storage facilitv"-A facility for the 
storage of explosive materials confomiing to 
the requirements of this part and covered by a 
license or pennit issued under authority of the 
ATE. (See 27 CFR Part 55.) 
'Blast area" - The area within the influence of 



(Si 



(e) 



ikl 



(m) 



(n) 



Hying debris, gases, and concussion from an 

explosion that may cause injury to property or 

persons. 

"Blasting agent" - A blasting agent is a mixture 

consisting of a fuel and oxidizer used for 

blasting where the finished (mixed) product 

cannot be detonated with a No. 8 test blasting 

cap when confined. 

"Electric detonator" - A detonator designed for 

and capable of detonation by means of an 

electric current. 

"Electric blasting circuitry"- 

( 1 ) Bus wire. An expendable wire, used in 
parallel or series, in parallel circuits, to 
which are connected the leg wires of 
electric detonators. 

(2) Connecting wire. An insulated 
expendable wire used between electric 
detonators and the leading wires or 
between the bus wire and the leading 
wires. 

(3) Lead wire. An insulated wire used 
between the electric power source and 
the electric detonator circuit. 

(4) Permanent firing line. A permanently 
mounted insulated wire used between 
the electric power source and the 
electric detonator circuit. 

"Electric delay caps detonators" ^ Detonators 
designed to detonate at a predetermined period 
of time after energy is applied to the ignition 
system. 
"Explosives" - 

( 1 ) Any chemical compound, mixture, or 
device, the primary or common purpose 
of which js to function bv explosion: 
that is. with substantialK instantaneous 
release of gas and heat, unless such 
compound, mixture or device is 
otherv\ise specificalh classified bv the 
U.S. Department of Transportation 
(USDOT). 

(2) Any material designated as a Class i 
Explosive by the USDOT. Under the 
USDOT classification s\siem. Class ]_ 
materials are di\'ided into the following 
six divisions: 



1419 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



Division 1.1 ^ Mass exploding 
(Fomierly Class A) 

Division 1.2 ^ Projection hazard 
(Formerly Class A or B) 
Division 1.3 ; Fire hazard, minor blast 
or projection hazard (Formerly Class B) 
Division 1.4 - Minor explosion hazard, 
not mass detonating (Fomierly Class C) 
Division 1.5 ; Insensitive explosives. 
veiT little probability of initiation or 
transition from burning; to detonation 
during transport. (Formerly Blasting 
Agent). 

Division 1 .6 - Insensitive articles which 
do not mass detonate. (No commercial 
explosives in this division) 
(p) "Magazine" ; Any container, building or 
structure, other than an explosives 
manufacturing building, used for the storage of 
explosives, 
(s) "Non-electric delay detonator" ; A detonator 
with an integral delay element in conjunction 
with and capable of being detonated by a 
detonation impulse or signal from miniaturized 
detonating cord or shock tube. 
(v) "Safety fuse" - A flexible cord containing an 
internal burning medium by which fire is 
conveyed at a continuous and unifonn rate for 
the pur pose of firing detonators. 
(x) "Stemming" - An inert incombustible material 
or device used to confine or separate 
explosives in a drill hole, or to cover 
explosives in mud-capping, 
(z) "Water-based explosives" - Explosive materials 
that contain substantial quantities of water in 
their fonnulation. They may be bulk or 
packaged products and may be cap sensitive or 
non cap sensitive (blasting agents). Water- 
based explosives include: 

( 1 ) "Emulsions" ; Explosive materials 
containing substantial amounts of 
oxidizer dissolved in water droplets, 
surrounded by an immiscible fuel or 
droplets of an immiscible fuel 
surrounded by water containing 
substantial amounts of oxidizer. 

(2) "Slurry" ; An explosive material 
containing substantial portions of a 
liquid, oxidizers and fuel, plus a cross- 
linking agent. 

(3) "Water gel" ; An explosive material 
containing substantial portions of water, 
oxidizers and fuel, plus a cross-linking 
agent. 

(bb) "Appropriate authorities" or 
"Authorities having jurisdiction" 
:_ local. Stale and federal law 
enforcement authorities required 



to be notified by law or permit or 

this Standard. 

(cc) "Blaster-in-Charge" - The person 

who meets the qualifications 

contained in § 1926. MO 1 and who 

is authorized to oversee the 

blasting operations and to use 

explosives for blasting purposes. 

(dd) "Blast site" ; The area where 

explosive material js handled 

during loading, including the 

perimeter formed by loaded blast 

holes, and 50 feet (15.2 meters) 

in all directions from loaded 

holes. A minimum distance of 

30 feet (9.1 meters) may replace 

the 50 feet (15.2 meters) if the 

perimeter of loaded holes is 

demarcated with a barrier. The 

50 feet (15.2 meters ) and 

alternative 30 feel (9.1 meters) 

requirements also apply in all 

directions along the full depth of 

the holes. In underground mines. 

15 feet of solid rib or pillar may 

be substituted for the 50 feet 

distance. 

(ee) "Shock tube" - A small diameter 

plastic tube used for initiating 

detonators. Shock tube contains 

a limited amount of reactive 

material so that the energy 

transmitted through the tube by 

means ot detonation wa\'e is 

guided through, and confined 

within, the walls of the tube. 

(ff) "Blasting operation" - Any work 

or activities associated with the 

use of explosives on a blast site. 

(gg) "Attended" ; Presence ot an 

individual or continuous 

monitoring to prevent 

unauthorized entry or access." 

t4->(5) Subpart V - Power Transmission and Distribution — 

1926.950(c)( 1 )(i) is rewritten to read as follows: 

"(i) The employee is insulated or guarded from the 

energized part (insulating gloves or insulating 

gloves with sleeves rated for the voltage 

involved shall be considered insulation of the 

employee only with regard to the energized 

part upon which work is being performed), or" 

f5f(6) Subpart Z — Toxic and Hazardous Substances — 

incorporation of the existing standard for Bloodbome 

Pathogens. 29 CFR 1910.1030. excluding' 

subparagraph (e) HIV and HBV Research 

Laboratories and Production Facilities, into the Safety 

& Health Regulations for Construction at 29 CFR 

1926.1130. Final rule as published in 56 FR 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1420 



PROPOSED RULES 



(December 6. 1991) pages 64175 - 64182. including 
Appendix A — Hepatitis B Vaccine Declination 
( Mandatory) -- with corrections as published in 57 FR 
(July 1. 1992) page 29206. and with the following 
revision to the definition of Occupational Exposure 
under subsection (b) Definitions: 

"Occupational Exposure means reasonabK 
anticipated skin, eye, mucous membrane, or 
parenteral contact with blood or other 
potentially infectious materials that may result 
from the perfonnance of collateral first aid 
duties by an employee in the areas of 
construction, alteration, or repair, including 
painting and decorating." 

Aiuhorin- G.S. 95-131: 150B-21.6. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21 .2 
that the ENR - Coastal Resources Commission intends to 
amend the ride cited as 15A NCAC 7H .0209. Notice of Rule- 
making Proceedings was published in the Register on May 14. 
1999.^ 

Proposed Effective Date: August 1 . 2001 

A Public Hearing will be conducted at 4:30 p.m. on March 23. 
2000 at the Sheraton Atlantic Beach. Adantic Beach. NC. 

Reason for Proposed Action: In July 1997. the Coastal 
Resources Commission adopted a temporary rule to establish 
guidelines for development along urban wateifronts. The 
General Assembly adopted HB 1059. which mullified the CRC's 
actions. Since HB 1059 (NCGS 113A-120.2 is set to e.xpire in 
July 2000). the CRC would like to adopt rules for development 
along cultural and historic urban wateifronts. 

Comment Procedures: Please contact Kim Crawford. Coastal 
Policy Analyst. NC Div. Of Coastal Management. PO Box 
27687. Raleigh. NC 27611-7687. Comments will he received 
through March 23. 2000. 



Fiscal Note: 



State 



Local 



Sub None 



CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 7H - STATE GUIDELINES FOR 
AREAS OF ENVIRONMENTAL CONCERN 

SECTION .0200 - THE ESTUARINE SYSTEM 

.0209 ESTUARINE SHORELINES 



(a) Rationale. As an AEC, estuarine shorelines, although 
characterized as dry land, are considered a component of the 
estuarine system because of the close association with the 
adjacent estuarine waters. This Section 'defines estuarine 
shorelines, describes the significance, and articulates standards 
for development. 

(bi Description. Estuarine shorelines are those non-ocean 
shorelines which are especially vulnerable to erosion, flooding, 
or other adverse effects of wind and water and are intimately 
connected to the estuary. This area extends from the mean high 
water level or normal water level along the estuaries, sounds, 
bays, and brackish waters as set forth in an agreement adopted 
by the Wildlife Resources Commission and the Department of 
Envnonment, Health, and Natural Resources [described in Rule 
.0206(a) of this Section) for a distance of 75 feet landward. For 
those estuarine shorelines immediately contiguous to waters 
classified as Outstanding Resource Waters by the Environmental 
Management Commission, the estuarine shoreline AEC shall 
extend to 575 feet landward from the mean high water level or 
normal water level, unless the Coastal Resources Commission 
establishes the boundary at a greater or lesser extent following 
required public hearing( s ) within the affected county or counties. 

(c) Significance. Development within estuarine shorelines 
influences the quality of estuarine life and is subject to the 
damaging processes of shore front erosion and flooding. 

(d) Management Objective. To ensure shoreline development 
is compatible with both the dynamic nature of estuarine 
shorelines and the values of the estuarine system. 

(e) Use Standards. 

( 1 ) All development projects, proposals, and designs shall 
substantially preserve and not weaken or eliminate 
natural barriers to erosion, including, but not limited 
to, peat marshland, resistant clay shorelines, and 
cypress-gum protective fringe areas adjacent to 
vulnerable shorelines. 

( 2 ) All development projects, proposals, and designs shall 
Umit the construction of impervious surfaces and 
areas not allowing natural drainage to only so much as 
is necessar)' to adequately service the major purpose 
or use for which the lot is to be developed. 
Impervious surtaces shall not exceed 30 percent of the 
AEC area of the lot, unless the applicant can 
effectively demonstrate, through innovative design, 
that the protection provided by the design would be 
equal to or exceed the protection by the 30 percent 
limitation. Redevelopment of areas exceeding the 30 
percent impervious surface limitation can be permitted 
if impervious areas are not increased and the applicant 
designs the project to comply with the intent of the 
rule to the maximum extent practical. 

( 3 ) All development projects, proposals, and designs shall 
comply with the following mandaiorv' standards of the 
North Carolina Sedimentation Pollution Control Act 
of 1973: 

(A) All development projects, proposals, and 
designs shall provide for a buffer zone along 
the margin of the estuarine water which is 
sufficient to confine visible siltation v\ ithin 25 



1421 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



percent of the buffer zone nearest the land 
disturbing development. 

(B) No development project proposal or design 
shall permit an angle for graded slopes or fill 
which is greater than an angle which can be 
retained by vegetative cover or other adequate 
erosion-control devices or structures. 

(C) All development projects, proposals, and 
designs which involve uncovering more than 
one acre of land shall plant a ground cover 
sufficient to restrain erosion within 30 working 
days of completion of the gradmg: provided 
that this shall not apply to clearing land for the 
purpose of fonning a reservoir later to be 
inundated. 

(4) Development shall not have a significant adverse 

impact on estuarine resources. 
(3) Development shall not significantly interfere with 

existing public rights of access to. or use of. navigable 

waters or public resources. 

(6) No major public facility shall be permitted if such 
facility is likely to require extraordinary public 
expenditures for maintenance and continued use. 
unless it can be shown that the public purpose served 
by the facility outweighs the required public 
expenditures for construction, maintenance, and 
continued use. For the purpose of this standard, 
"public facility" shall mean a project which is paid for 
in any part by public funds. 

(7) Development shall not cause major or irreversible 
damage to valuable, documented historic architectural 
or archaeological resources. 

(8) Established common-law and statutory public rights 
of access to the public trust lands and waters in 
estuarine areas shall not be eliminated or restricted. 
Development shall not encroach upon public 
accessways nor shall it limit the intended use of the 
accessways. 

(9) Within the AEC for shorelines contiguous to waters 
classified as Outstanding Resource Waters by the 
EMC. no CAMA permit will be approved for any 
project which would be inconsistent with applicable 
use standards adopted by the CRC. EMC or MFC for 
estuarine waters, public trust areas, or coastal 
wetlands. For development activities not covered by 
specific use standards, no permit will be issued if the 
activity would, based on site specific information. 
materially degrade the water quality or outstanding 
resource values unless such degradation is temporary. 

(f) Specific Use Standards for ORW Estuarine Shorelines. 
( 1 ) Within the AEC for estuarine shorelines contiguous to 
waters classified as ORW by the EMC, all 
development projects, proposals, and designs shall 
limit the built upon area to no more than 25 percent of 
the AEC area of the land to be developed or any lower 
site specific percentage as adopted by the EMC as 
necessary to protect the exceptional water quaht\ and 
outstanding resource values of the ORW, and shall: 



(A) have no stormwater collection system; 

( B ) provide a buffer zone of at least 30 feet from 
the mean high water line: 

(C) otherwise be consistent with the use standards 
set out in Paragraph (e) of this Rule. 

(2) Development (other than single-family residential 
lots) more than 73 feet from the mean high water line 
but within the AEC which as of June I. 1989: 

(A) has a CAMA permit application in process, or 

(B) has received preliminary subdivision plat 
approval or preliminary site plan approval 
under applicable local ordinances, and in which 
substantial financial resources have been 
invested in design or improvement: will be 
permitted in accordance with rules and 
standards in effect as of June I. 1989. 

(3) Single-family residential lots which would not be 
buildable under the low-density standards defined in 
Paragraph (f)( 1 ) of this Rule may be developed for 
single-family residential purposes so long as the 
development complies with those standards to the 
maximum extent possible. 

(4) For ORWs nominated subsequent to June 1. 1989. the 
effective date in Paragraph (f)(2) of this Rule shall be 
the dates of nomination by the EMC. 

(g) Urban Waterfronts: 

( 1 ) Description. Urban Waterfronts are waterfront areas, 
not adjacent to Outstandinti Resource Waters, in the 
Coastal Shorelines AEC that lie within the corporate 
limits of any municipality dul\ chartered within the 20 
coastal counties of the state. In detenninintz whether 
an area is an urban waterfront, the following criteria 
shall be met as of the effective date of this Rule: The 
area lies wholly withm the corporate limits of a 
municipality: and the area js in a central business 
district where there is minimal undeveloped land, 
mixed land uses, and urban level services such as 
water, sewer, streets, solid waste manauement, roads, 
police and fire protection. 

(2) Significance. Urban wateri'ronts are recognized as 
having cultural, historical and economic significance 
for many coastal municipalities. Maritime traditions 
and longstanding development patterns make these 
areas suitable for maintaining or promoting dense 
development along the shore. With proper planning 
and stormwater management, these areas may 
continue to preserve the local historical and aesthetic 
values \\ hile enhancing the economy. 

(3) Management Ohjectives. To provide for the 
continued cultural, historical and economic benefits of 
urban v>aterfronis. Activities such as in-fill 
development, reuse and redevelopment facilitate 
efficient use of already urbanized areas and reduce 
development pressure on surrounding areas, thus 
minimizing the adverse cumulati\'e environmental 
effects on estuarine and ocean s\siems. While 



recognizing that opportunities to preserve buffers are 
limited in highly developed urban areas, they are 



14:16 



NORTH CAROLINA REGISTER 



Eebnmrv 15, 2000 



1422 



PROPOSED RULES 



encouraged where practical. 
(4) Use Standards: 

(A) Upland development within designated Urban 

Waterfronts shall meet the following standards: 

(i) The development must be consistent 

with the locally adopted land use plan; 

(ii) Within the Coastal Shorelines AEC for 

shorelines contiguous to all waters not 

classified as Outstanding Resource 

Waters, no buffer is required for 

development that meets at least one of 

the following standards: 

(I) A stormvsater collection system 

certified by a licensed design 

professional and approved during 

the pennit application process. 

The stomiwater col lection system 

must be maintained for the life of 

the project and must provide 

protection that is equal to or 

exceeds that provided under the 

imperyjous surface limitation 

established pursuant to this Rule. 

or 

(II) Connect to a local stormwater 

collection system that does not 

discharge into coastal wetlands. 

esluarme waters or public trust 

areas, or 

(III) Connect to a local stomiwater 



collection system that has an 
existing stomuvater management 
plan approved by the Divrsion of 
Water Quality. 
(B) Non-water dependent uses over public trust 
waters may be allowed only within designated 
Urban Waterfronts as set out in this Rule. 
(i) Existing structures over coastal 
wetlands, estuarine waters and public 
trust areas may be used for non-water 
dependent purposes, 
(ii) New structures or expansions of 
existing structures built for non-yyater 
dependent purposes are limited to pile 
supported, unrooted, unenclosed decks 
and boardwalks, and must meet the 
following criiena: 

(I) The proposed development must 
be consistent with a locally 
adopted waterfront access plan 
that provides for enhanced public 
access to the shoreline: 
(II) Structures must be pile supported 
and require no filling ot coastal 
yvetlands. estuarine waters or 
public trust areas: 
(III) Structures shall not extend more 
than 20 ft. waterward of the 



(IVJ 



(VI) 



iYiD 



(VIII) 



(IX) 



normal high water level or 
normal water level: 
Structures must be elevated at 
least three fee< over the wetland 
substrate measured from the 
bottom of the decking; 



(V) Structures shall have no more 
than six feet of an^ dimension 
extending over coastal wetlands; 
Structures shall not interfere 



(X) 



with access to any riparian 
property and shall have a 
minimum setback of J[5 feet 
between any part of tlie structure 
and the adjacent property 
owners = areas of riparian access. 
The line of division of areas of 
riparian access shall be 
established by drawing a line 
along the channel or deep water 
in front of the properties, then 
drawing a line perpendicular to 
the line of the channel so that it 
intersects with the shore at the 
point the upland property line 
meets the water's edge. The 
minimum setback provided in the 
rule may be waived by the 
w ritten agreement of the adjacent 
riparian owner(s) or when two 
adjoining riparian owners are 
co-applicants. Should the 
adjacent property be sold before 
construction of the structure 
commences, the applicant shall 
obtain a written agreement with 
the new owner waiving the 
minimum setback and submit it 
to the permitting agency prior to 
initiating any development: 
Structures must be consistent 
with the US Army Corps of 
Engineers= setbacks along 
federally authorized waterways; 
Structures shall have no 
significant adverse impacts on 
fishery resources, water quality 
or adjacent yvetlands and there is 
no reasonable altemative that 
yvould avoid wetlands; 
Structures shall not degrade High 
Qualify Waters. Outstanding 
Resource Waters. Primary 
Nursery Areas or waters 
classified as SA. bv the 
Environmental Management 
Commission; and 
Structures shall not pose a threat 



1423 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



to navigation. 

Autlwntx G.S. ]lM-]07(h): U3A-108: 113A-I13(h}: U3A- 
124. 



TITLE 17 - DEPARTMENT OF REVENUE 

Notice is hereby };iven tliat tlie Nortli Carolina Department 
(if Revenue intends to amend the rule cited as 17 NCAC IC 
.0502. 

Editor's Note: G.S. 150B-l{d)(4) exempts the Department of 
Revenue from Part 2 Article 2A of Chapter J?0B with respect to 
the notice and liearing requirements. The Department will 
however publish the text of proposed rides in the North Carolina 
Register prior to the scheduled time of review by the Rules 
Review Commission. 



(c) U.S. Institutions and Currency. -- Checks, money orders 
orders, or other instruments must be drawn on U.S. financial 
institutions in U.S. dollars and cents. If the Department accepts 
an instrument drawn on a foreign b anks shall be entered 
financial institution or in foreign currency and enters ri for 
collection and clea r ed through the State's financial institut i on. 
Any institution, any transfer fees, service charges, discrepancies 
in exchange rate, or other fees shall be are the responsibility of 
the remitter and will be deducted from the proceeds. When 
c ollected collected, the net proceeds shall be are credited against 
the tax liability for which the remittance was made. 

( d ) Certified Funds. ^^ Checks wh ic h that have been returned 
to the Department due to insufficient funds in a taxpayer's 
account or nonexistence of an account, shall account must be 
repaid to the Department with certified funds whe r e when the 
penalty under G.S. 105-236( I ) is a p plicable, applies. 

Authority G.S. 105-241; 105-236(1): 105-262. 



Proposed Effective Date: July 1.2000 

Instructions on How to Demand a Public Hearing: Contact 
Mr. Keith McComhs at (919) 733-6800 to discuss the proposed 
change. If a hearing is desired, submit a written request for a 
hearing to Mr. Keith McCombs at NC Department of Revenue , 
PO Box 25000, Raleigh. NC 27640. 

Reason for Proposed Action: The Department is getting an 
increasing number of foreign checks. The rule is amended to 
emphasize the requirement in G.S. 105-24 1 tliai taxes he paid in 
the national currency. Technical and formatting changes are 
also made. 

Comment Procedures: Submit written comments to Mr. Keith 
McCombs at North Carolina Department of Revenue. 
Accounting Division, PO Box 25000, Raleigh, NC 27640. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



CHAPTER I DEPARTMENTAL RULES 

SUBCHAPTER IC - GENERAL ADMINISTRATION 

SECTION .0500 - FORM OF PAYMENT 

.0502 METHOD OF PAYMENT 

(a) Methods. - Tax payments, including penalty and interest, 
shatt must be made by cash, warrant, uncertified check, certified 
check, money order, or other another instrument freely 
negotiable at par through the Federal Reserve System unless 
otherwise specified. The Department shaH must notify the 
taxpayer at least 30 days in advance if a specific method is to be 
required. 

(b) Collection. - All payments other than by U.S. cu rre n cy 
(cash) cash are subject to collection. 



:i!*^HJ*!Ei* *****=}= -!:Jl:***** 

Notice is hereby given that the North Carolina Department 
(if Revenue intends to amend the rules cited as 17 NCAC IC 
.0504: .0506: .0509. 

Editor's Note: G.S. 150B-l(d)(4) exempts the Department of 
Revenue from Part 2 Article 2A of Chapter I50B with respect to 
the notice and hearing requirements. The Department will 
however publish the text of proposed rules in the North Carolina 
Register prior to the scheduled time of review by tlie Rules 
Review Commission. 

Proposed Effective Date: ./ulx 1. 2000 

Instructions on How to Demand a Public Hearing: Contact 
Ms. Elizabeth Williams at (919) 733-7307 to discuss the 
proposed changes. If a hearing is desired, submit a written 
request for a hearing to Ms. Elizabeth Williams at NC 
Department of Revenue, PO Box 871 . Raleigh. NC 27602. 

Reason for Proposed Action: 

17 NCAC IC .0504 - S.L. 99-389 adds corporations that make 
federal estimated income tax payments by EFT to the list of 
ta.xpayers that must make State tax payments by EFT. The rule 
is amended to reflect this legislative change and to make 
technical changes. 

17 NCAC IC .0506 - Some of the taxes in the list of voluntary 
participation have been repealed and some new ta.xes have been 
added for which the ta.xpayers can pay by EFT. The rule is 
changed to state a general principle and avoid the need to 
change the rule whenever a particular tax is repealed or a new 
tax is enacted. 

17 NCAC IC .0509 - The current rule does not address the 
piped gas tax and has inaccurate information about returns. 
The rule is amended to state a general principle about the effect 
of an EFT payment on other filing obligations rather than 
address each tax type. A payment coupon, such as a CD-429. is 
not a return and the penalties for filing a late return do not 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1424 



PROPOSED RULES 



apply if a CD-429 is filed late. The rule implies that failure to 
file penalties as well as failure to pay penalties would apply in 
this and other similar circumstances, which is not the case. The 
rule is amended to correct this implication. 

Comment Procedures: Submit written cotmnents to Ms. 
Elizabeth Williams at North Carolina Department of Revenue. 
PO Bo.x S71. Raleigh , NC 2 7602 . 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



CHAPTER 1 DEPARTMENTAL RULES 

SUBCHAPTER IC - GENERAL ADMINLSTRATION 

SECTION .0500 - FORM OF PAYMENT 

.0504 WHEN PAYMENT BY EFT IS REQUIRED 

(a) Tax p ayers who paid one million two h und r ed thousand 
dolla r s ($1 .200.000) o r mo r e of Withholding of Income Taxes 
f rom wages of individuals levied unde r Cha p t er 105 A r ticle 4A 
du r ing the selectio n p e r iod shall r emit payments due and payable 

afte r Janua r y 1. 1994 by elect r onic funds tra n sfe r . Taxpaye r s Cha p ter 105 Ailicle 2D du ri ng t he selection period shall r emit 
wh o p a i d two hund r ed fo r ty thousand dolla r s ( $240.000 ) or more 



($1 .200.000) or mo r e in Sales and Use Tax levied under Chapter 
105 A r ticle 5 and Articles 39. 40. and 42 of Subchapter VIII 
during the selection p eriod shall remit payments due on or after 
Oct ob e r 1. 1994 by CFT. Exce p t as p rovided in Subparag r a p h 
(c)(3) of this Rule, taxpaye r s who paid two hund r ed foiiy 
thousand dolla r s ( 5240.000) o r more in Sales and Use Tax levied 
under Chapte r 105 A r ticle 5 and Articles 39. 40. and 42 of 
Subcha p te r VIII du ri ng the selection pe r iod shall remit payments 
due on or after October 1. 199 5 by CFT. 

(e) Tax p aye r s who p aid two hund r ed fo r ty thousand dollars 
($240,000) or more in Mot or Fuels Taxes lev i ed unde r Chapter 
105 Ani cl e 3 6 C a n d 36D of Subchapte r V du r ing the selection 
p e ri od shall remit payments due on o r after July 1. 1995 by EFT. 

(f) Taxpayers who p aid one million two hund r ed thousand 
dolla r s ($1,200,000) o r more of Tobacco P r oducts Tax levied 
unde r Chapter 105 A r ticle 2 A during the selection pe r iod shall 
r emit payments due on o r after Janua r y' 1. 1995 by electronic 
funds t r ansfer. Tax p ayers who p aid two hundred fony thousand 
dolla r s ($240,000) o r more of Tobacco P r oducts Tax levied 
unde r Chapter 105 A r ticle 2A du n ng the selection period shall 
r emit payments due o n o r after January 1. 199 6 by electronic 
fu n ds t r an sfer . 

(g) Taxpaye r s who paid one million two hund r ed thousand 
dol l a r s ($1,200,000) o r mo r e of Soft D r ink Tax levied under 



mg t he selection pen 
p ayments due on o r afte r Januar} ' I. 1995 by elec tr onic funds 



of Withholding of Income Taxes from wages of indiv i duals t r ansfer. — Taxpayers who paid two hund r ed forty thousand 

dollars ($240,000) o r mo r e of Soft Drink Tax levied under 



icome taxes trom wages ot maiv i auais 
"hapte r 105 Article 4A du ri ng th e selection period 
shall r emit p ayments due a n d payable afte r Janua r y ' 1. 1996 by Cha p te r 105 A r ticle 2D during the select ion p eriod shall remit 
elect r onic funds transfe r . 

tW — Tax p aye r s who p aid four hund r ed t housand dollars 
($400,000) or more of Co rp o r ate Income Tax who are required 
to make installment p ayments of Est i mated Income Tax under 
Cha p t er 105 A r ticle 4C during the selection p eriod shall remit 
p ayments due and p ayabl e afte r JanuaiT 1. 1994 by elect r onic 
funds t r ansfe r . Taxpaye r s who paid two hund r ed fo r ty thousand 
dollars ($240,000) or more of Co r po r ate Income Tax who are 
re qui r ed to make i n stallment p ayments of Estimated Income Tax 
under Chap t er 105 Ar t icle 4C during the sele ct ion period shall 
remit paymen t s due and payable af t e r January 1. 1996 by 
el e c troni c funds t ransfer. 

(c ) Taxpayers sub j ec t to the following t ax t ypes who paid one 
million t wo hundred t housand dollars ($1,200,000) oi moie 



du r ing t he selection period shall remi t 



, due on or af t e r 



j r ing t ne selection period shal l remi t p aymen t s i 
July 1. 1994 by elec t ronic funds t ransfer: 

Alcoholic Deverage Excise Tax es p ayable under 
Chap t er 105 Ai t icle 2C. 

Utilities Franchis e Ta x es levied under G.S. 105-1 16 
orO.S. 105-120. 



Hi 
ffh 



U t ili t ies Sales Taxes due under t he p r ovisions of G.S. 
105-164.4 ( a)(4c). 
Taxpaye r s sub j ec t t o t he above t ax t y p es w l'i o paid t wo hundred 
fo n y t housand dollars ($240,000) o r more during t he select i o n 
per i od shall remit paymen t s due on o r af t e r Janua r y ' 1. 1996 b\ ' 
e lectron ic funds t ransfe r . 

(d) Excep t as provided in Subparag r a p h ( c)(3) of t his Rule. 
t axpaye r s who paid one million t wo hundred t housand dollars 



Ticie ju auring tne select ion p e r iod si" 
p ayments due on o r a f te r Janu ar ys 1. 1996 by electronic funds 
t r ansf er . 

(h) Taxpayers who p aid two hund r ed fo r ty thousand dollars 
($240,000) o r mo r e of Insu r ance Taxes levied unde r G.S. 105 
A rticl e 8D during the selection period shall re mit payments due 
on or afte r Januaiy 1. 1996 by elect r onic funds t r ansfer . 

(il The dete nni nation as to which taxpayers shall be su bj ect 
to the r emittance p r ovisions to the rules in this Section shall be 
made by the De p a r tment, on a tax by tax basis, and shall be 
based on t he ave r age amoun t of t ax p aid during any 12 
consecu t ive mon t h per iod preceding t he im p lemen t a t ion of any 
new application or rev i ew of t he paymen t requirement. 

(J ) The Departmen t shall no t ify t he selec t ed t axpayers of t he 
requiremen t s of t hese Rules by firs t class mail to t hei r las t 
address of record. 

(k) The Departmen t shall provide t he selec t ed t axpayers wi t h 
fo r ms necessaiy for registering to make paymen t s for the t axes 
t h r ough EFT. The De p ar t men t shall provide an explanation of 
t he paymen t options availab l e. 

( 1 ) The t axpayer shall reg i s t er to make paymen t s for t he t axes 
t hrough EFT. and s h a ll se l e ct a pay m e nt op t ion subject t o 



app r oval by t he Depar t men t 



• par t men t in acco r dance with Rule .0508(b) . 

(m) The Department shall provide t echnical assis t ance and 
guidance to t he selec t ed t axpayers concerning t he paymen t of 
taxes through EFT. An EFT hotline shall be available to t l ie 
t axpayers from 8:00 a.m. t hrough 5:00 p.m.. Eas t ern S t andard 
Tim e , e ach business day. wi t h excep t ion of S t a t e holiday ' s. 

(a) Certain Corporations. ~ A corporation that makes its 
federal estimated corporate income tax payments by EFT must 



1425 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



make its State estimated corporate income tax payments by EFT. 
A corporation that maizes its federal estimated corporate income 
tax payments by EFT must obtain an EFT registration fonn and 
submit it to the Department. 

(b) Other Taxpayers. - A taxpayer who pays in a selection 
period at least two hundred forth thousand dollars $240. OOP of 
a tax that js reported on a quarterly, monthly, or more frequent 
basis must pav that tax by EFT when the Department notifies the 
taxpayer of this requirement. The Department must notify a 
taxpayer by first class mail sent to the ]ast address of record. 
When notified, the taxpayer must complete an EFT registration 
form and begin making payments by EFT b\ the date set by the 
Department. That date must be at least 60 days after the date of 
the notice. 

(c) Assistance. ;; The Department must proyide technical 
assistance to taxpayers required to qo^ taxes by EFT. The 
Department must haye an EFT hotline ayailable to taxpayers 
each business day from 8:00 a.m. to 5:00 p.m.. Eastern Standard 
Time. A State holiday is not a business day. 

AuthoritxG.S. 105-241: 105-163.40: 105-262. 



P r ogram afte r 12 months by giving the Department 45 days 
written notice. 

(d) Tax p ayers who elect to partici p ate in the EFT P r ogram 
shall be su b ject to the p enalty p r ovisions stated in G.S. 105-236 
(la) and (lb). 

( e ) Tax p aye r s electing to p artici p ate in the EFT P r og r am shall 
b e su b ject to the sa m e r ules as tax p aye r s subject to the 
r emitta n ce pr ovisions of 17 NCAC IC .0504. 

(a) Eligibility. - A taxpayer who is not required to pay a tax 
by EFT may make its payments of that tax by EFT with the 
approval of the Secretary. A taxpayer who wants to pay a tax by 
EFT must submit an EFT registration fonn to the Secretar\' and 
must receive notice from the Secretary that the registration has 
been approved. The Department's process is not currently 
designed to accept all payments by EFT. Some tax types and 
payment amounts will not be approved for payment by EFT. 

(b) Period. -- A taxpayer who receives approval to pay a tax 
by EFT must make jts payments of that tax by EFT for a 
minimum of 12 consecutive months. A taxpayer may stop 



.0506 VOLUNTARY EFT PROGRAM 
PARTICIPATION 

ts) — The followii 



^'ing tax p aye r s not s 
provisions of 17 NCAC IC .0504 may elect to p articipate in the 



making its tax payments by EFT after 1 2 months by giving the 
Department at least 45 days written notice. 

(c) Duties. — A taxpayer who receives approval to pay a tax 

by EFT is subject to the same requirements as a taxpayer who is 

required to make tax payments by EFT. The penalties in G.S. 

ubject to r emittance l()5-236( la) and ( Ibiapply to a taxpayer who voluntarily makes 

tax payments by EFT. 



EFT Prog r am on or afte r January 1. 1995 : 
Hi Tax p aye r s — r equi r ed — to — fife- 



returns and pay Aiilhonty G.S. 105-241: 105-262: 105-236. 



W i thhold i ng of hicome Taxes — from wages of 

i n dividuals unde r Article 4A. 
f2l Tax p aye r s r equi r ed to r em i t installment payments o f 

Esti m ated Co rp o r ate hicome Tax unde r Cha p te r 105 

A r tic l e 4 C. 
(61 Tax p aye r s who r emit Alcoholic Beverage Excise 

Taxes p ayable unde r Chapte r 105 A r ticle 2C. 
t4i Tax p aye r s who r emit Utility Sales Tax payable unde r 

the p rovisions of G.S. 105-164.4 (a)(4c). 
t5f Tax p aye r s who r emit Utility F r anchise Tax p aya b le 

under G.S. 105-1 16 or G.S. 105-120excluding 

t elephone — companies — who remit less than t hree 

t housand dollars ($3,000.00) pe r month. 
ffr) Taxpayers who remi t Sales and Use Tax under G.S 

l()5-164.16(b). 
t7l Taxpayers who re mi t Motor Fuels Taxes levied under 

Chap t er 105 A rt icl e 36C and 36D. 
Wi Taxpayers who r emi t Tobacco P r oduc t s Tax levied 

under Chap t er 105 Ar t icle 2A. 
t^ Taxpaye r s who remi t Sof t Drink Tax levied under 

Cha pt er 105 Anicle 2D. 
("Kb Taxpayers who remit hisurance Taxes levied under 

Chap t er 105 A rt icle HD. 
(b) Taxpayers elec t ing to voluntarily participa t e in t he EFT 
P r og r am shall com p le t e and return f ' orm AC-EFT- lOOV. 



.0509 EFT PAYMENT PROCEDURES 

(a) Initiating Transfer. - Taxpayers who are required to remit 
tax payments through EFT must initiate the transfer so that the 
amount due settles into the Department's bank account on or 
before the due date under the appropriate General Statute. If a 
tax due date falls on a Saturday, a Sunday, or a legal holiday, the 
deposit by electronic funds transfer is required on or before the 
first banking day thereafter. If the date on which the taxpayer is 
required to initiate either an ACH Debit or an ACH Credit 
transfer (call-in day) falls on a Saturday. Sunday, or a holiday, 
the taxpayer must initiate the transaction on the preceding 
business day. Thus, the deposit date (settlement day) will be the 
first business day following the due date. 

(b) ACH Credit. ^ If a taxpayer is approved for the ACH 
Credit payment method, the taxpayer is responsible for ensuring 
the bank originating the transaction has the infomiation 
necessary for timely completion of the transaction. Further the 
taxpayer is responsible for the correct completion of the 
transaction. The taxpayer shall must provide the information 
necessary for the bank to complete the NACHA CCD+ entry 
with the TXP Banking Convention addenda record. 

(c) Effect on Filing Requirements. - The EFT method of 
payment does not change the curren t filing requirements for tax 
re t urns except fo r W it hholding Taxes. I n s t al lm e nt Paymen t s of 



Elec t ron i c — Funds — Transfe i — Autho r iza t ion — Agreemen t — for Es t ima t ed I n co m e Tax b v Co rp o r a t io n s and U t ilit\ ' Franchise 
Voluntary Pa rt ic i pan t s. 



(c) Taxpayers who elec t t o participa t e in t he EFT Pro gram 
shall rem it payments elec t ronically for a minimum of t wel v e 
consecu ti ve mon t hs. A t ax p ayer may wi t hdraw from t he EFT 



t ima t eci i n co m e lax fi \ ' c o rp o r a t io n s anci u t i i 
Taxes. The paymen t informa t ion receised by the Departmen t f o r 
Wi t hholding Taxes and Installment Payments of Es t imated 
Income Tax by Corpora t ions cons t i t utes the f ili ng of Forms 
NC-5P and CD-429. respective ly . Fo r U t ility Franchise Taxes. 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1426 



PROPOSED RULES 



the payment information accompa n yi n g the funds transfer 
constitutes the filing requirement fo r tlie fi r st two months of a 
c a lenda r qua r te r fo r [Zlectric and Piped Gas Com p anies and 
T el ep hone Com p anies who liability exceeds th r ee thousand 
dollars ($3,000) or more per month, reports and returns. It isa 
substitute, however, for filing a tax payment coupon, such as an 
NC-5 for withholdiuiz lax payments or a CD-429 for corporate 
estimated income tax payments. It is also a substitute for a 
payment requirement for which no payment coupon is used, such 
as the payment requirement imposed on companies by G.S.I 05- 
1 16 and G.S. 105-120 for the first two months of each calendar 
quarter. Late EFT payments are subject to the penalty in G.S. 
105-236 for failure to pay a tax when due and are subject to any 
other applicable penalties. 

tdl — Fo r tax ty p es in vyhich the lax p ayment information 
constitutes the filing of a tax r eturn, an affirmation statement on 
t he r egist r ation fo r m shall be comple t ed by the taxpayer 
certifying that the tax payment info r mation the De p a r tment shall 
r eceive will be t r ue and com p lete. 

(e) Any p ayment r equi r ed by EFT which i s n ot timely made 
or the return is not filed by the due date shall be subject to the 
e i the r late payment o r lat e fil i ng p enalt i es o r b oth unde r G.S. 
105-236 and interest. 

rti — The De p a r tment shall furnish an a ppr o pr iate fo r m fo r 
filing a tax r eturn, if a pp licable, indicating an EFT status for a 
ta x p aye r required to r e m it tax p ayments b y EFT. If a taxpaye r 
fo r m i s utilized, it shal l have t he s ame EFT designation as the 
Departmental form and is subject to De p artmental approval. 

Aiithorirx G.S. J 05-236: J 05-24 J: J 05-262. 



N 

.0601. 



otice is hereby given that the North Carolina Department 
of Revenue intends to atnend the rule cited as J 7 NCAC IC 



Comment Procedures: Submit written comments to Ms. Sahra 
Faires at NC Department of Revenue. PO Box 871 , Raleigh, NC 
27602. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



CHAPTER 1 DEPARTMENTAL RULES 

SUBCHAPTER IC - GENERAL ADMINISTRATION 

SECTION .0600 - SUBSTITUTE FORMS 

.0601 APPROVAL REQUIRED FOR SUBSTITUTE 
FORMS 

( a ) Process — The Department prepares forms for taxpayers 
to use in reporting and paying taxes. The forms are designed to 
be able to be processed accurately and efficiently on the 
Department's processing equipment. A company that wants to 
reproduce a form of the Department for use by a taxpayer must 
meet the requirements of the Department before it does so. 
These requirements include obtaining from the Department a 
vendor number and the technical specifications for the form, 
submitting to the Department a draft of the substitute form for 
approval, and receiving a letter from the Department stating that 
the draft substitute form submitted complies with the 
Department's requirements. The person at the Department to 
contact to obtain approval of a substitute form is the Di r ector of 
the Divis i on that adm in iste r s the tax. Department's Forms 
Coordinator. 

(b) Rejection - The Department may reject any fomi that is 
submitted and is not a fomi prepared by the Department or 
approved for use by the Department. 

Authority 105-252; 105-262. 



Editor's Note: G.S. 150B-l(d)(4) e.xetnpts the Department of 
Revenue from Part 2 Article 2A of Chapter 150B with respect to 
the notice and hearing requirements. The Department will 
however publish the te.xt of proposed rules in the North Carolina 
Register prior to the scheduled time of review by the Rules 
Review Commission. 

Proposed Effective Date: July 1. 2000 

Instructions on How to Demand a Public Hearing: Contact 
Ms. Sabra Faires at (919) 715-02.U to discuss the proposed 
change. If a hearing is desired, submit a written request for a 
hearing to Ms. Sabra Faires at NC Department (f Revenue, PO 
Box 871 . Raleigh. NC 27602. 

Reason for Proposed .4ction: The Department has a Forms 
Coordinator and that person is the one to contact about 
substitute forms. The amendment to the rule changes the 
instruction about who to contact in the Department on the 
subject of substitute forms . 



Notice is hereby given that the North Carolina Department 
of Revenue inteiuis to amend the rule cited at 17 NCAC 3C 
.0108 and repeal the rule cited as 1 7 NCAC 3B .0302. 

Editor's Note: G.S. 150B-l(d)(4) exempts the Department of 
Revenue from Part 2 Article 2A of Chapter 150B with respect to 
the notice and hearing requirements. The Department will 
however publish the text of proposed rules in the North Carolina 
Register prior to the scheduled time of review by the Rules 
Review Commission. 

Proposed Effective Date: .lulx 1.2000 

Instructions on How to Demand a Public Hearing: Contact 
Mr. Sam McEwen at (919) 733-3565 to discuss the proposed 
changes. If a hearing is desired, submit a written request for a 
hearing to Mr. Sam McEwen at NC Departtnent of Revenue . 
Personal Taxes Division. PO Box 871. Raleigh, NC 27602. 



1427 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



Reason for Proposed Action: 

17 NCAC 3B .0302 - S.L. 9S-212 repealed the inheritance ta.\ 

and replaced it with an estate "pick-up" tax, effective January 1 , 

1999. The new ta.\ does not have classes of beneficiaries. This 

rule is therefore obsolete. 

17 NCAC 3C .0108 - The rule is revised to reflect changes in 

Form D-410 and to make technical changes. 

Comment Procedures: Submit written comments to Mr. Sam 
McEwen at NC Department of Revenue. Personal Taxes 
Division. PO Box S7 1. Raleigh. NC 27602. 



Fiscal Impact 

State Local Sub. 



None 
/ 



CHAPTER 3 - INHERITANCE AND GIFT TAX 
DIVISION 

SUBCHAPTER 3B - INHERITANCE TAX 

SECTION .0300 - EXEMPTIONS AND CLASSES 

.0302 STEP-GRANDCHILDREN 

A step-g r andchild is classified as a class "A" beneficiaiT. 



met, any remaining balance due. including interest, must be paid 
with the gift tax return before the expi r ation of the extension 
p eriod to avoid the late p ayment penalty. If the a pp lication for 
extension is dete r mined t o be invalid, both the late fil i ng and the 
late p ayment p ena l t i es w i ll a pp ly. An a p plication fo r extens i on 
i s conside r ed invalid if the amount ente r ed on the extension fo r m 
as the tax ex p ected to be due i s not pr operly es ti mated. In 
det er mining whethe r the amount r efle c ted as t ax d ue on the 
a p plication is pro p e r ly estimated, all facts and circumstances, 
including the amount of tax due in p rior years, whether 
subs t a n t i al und erp ayments have been made in othe r years, and 
whethe r a dono r made a b ona fide and reasonable attempt to 
locate, gather, and consult i nfo r mation, are conside r ed. 

(c) Donors Outside U.S. _ Donors, includiiii; military 
personnel, living outside the United States and Puerto Rico 
(including — militar>' — p e r sonnel ) are granted an automatic 
extension of two months for filing a North Carolina gift tax 
return. No application is required to receive this extension. 

(d) Return. ;; A return may be filed at any time within the 
extension p e r iod but i t m ust be f i led before the end of the 
extension p e r iod to avo i d the late filini; p enaltv. period. A return 
that is filed after the end of the extension period is subject to the 
penaltv for failure to file a return. 



Authority G.S. 105-197: 105-236: 105-262: 105-263. 



Authority G.S. 105-4: 105-262: Ingram v. Johnson 260 NC 697. 
133 S.E. 2'"' 662 (1963). 

SUBCHAPTER 3C - GIFT TAX 

.0108 EXTENSIONS 

(a) Application. - If the Gift Tax Return. Form G-60(). 
cannot be filed by the due date of April 15. a donor may apply 
for an automatic six-month extension of time to file the return. 
To receive the extension, a donor must file Form D-4I(), 
Application for Automatic Extension of Time to File State 
Income o r Gift Tax Return, Extension, by the original due date 
of the return. In lieu of filing Fomi D-410, an automatic six- 
month extension of time to file the gift tax return will be granted 
to a donor who files Federal Fonn 4868. Application for 
Automatic Extension of Time, with the Internal Revenue Service 
and submits to the Department a copy of the completed Form 
4868 by the original due date of the return. When filing a copy 
of Form 4868 in lieu of Form D-410. a donor must clearly state 
that the form is for North Carolina, must mark through the 
federal amounts shown on the form, and must enter the 
applicable amounts for North Carolina. 

(b) Late Payment Penaltv. -- An extension does not extend 
the time for payment of the tax due. Tax not paid by the original 
due date of the retum is subject to the IO''t penaltv for failure to 
pa\ a tax when due. The Department does not assess this 
penaliN d the donor paid at least 9( K'c ot the amount of tax due 
by the original due date of the return. Interest applies to all 
amounts not paid bv the original due date of the retum. A 10 



^:t:^^:i:^H<^ 






percent late p ay m e n t p e n a lt > ' applies t o the remaining balance 
due if t he t ax pa i d by th e due da t e of t he retu r n is less t han * ■>() 
t he t o t al amoun t of t ax due. If t he 90 per c ent ru l e i s 



Notice is hereby given that the North Carolina Department 
of Revenue intends to repeal the rules cited as 17 NCAC 4B 
.4301 -.4302. .440 1 -.4402. 

Editor's Note: G.S. 150B-l(d)(4) exempts the Department of 
Revenue fi-om Part 2 Article 2A of Chapter 150B with respect to 
the notice and hearing requirements. The Department will 
however publish the text of proposed rules in the North Carolina 
Register prior to the scheduled time of review by the Rules 
Review Commission. 

Proposed Effective Date: ./;//v /. 2000 

Instructions on How to Demand a Public Hearing: Contact 
Mr. Billy Daniel at (919) 733-8510 to discuss the proposed 
changes. If a hearing is desired, submit a written request for a 
hearing to Mr. Billy Daniel at NC Department of Revenue. 
Corporate Tax Division. PO Box S71 . Raleigh. NC 27602. 

Reason for Proposed Action: 

17 NCAC 4B .4301:4302 - These rules are unnecessaiy 

because they repeat the statutes and .4301 is inaccurate in part. 

G.S. 105-104 addresses the nuinner of obtaining a license from 

the Secretary of Revenue and G.S. 105-4 lii) states that the 

license alone does not authorize the practice of a profession for 

which a qualification license is required. 

17 NCAC 4B .4401:4402 - G.S. 105-109 has been revised and 

G.S. 105-109.1 has been repealed so that the Article 9 penalty 

and interest provisions apply to privilege license taxes. These 

rules arc therefore inaccurate and obsolete. 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1428 



PROPOSED RULES 



Comment Procedures: Submit written comments to Mr. Billy 
Daniel at NC Department of Revenue. Corporate Tax Division, 
PO Box 87 I.Raleigh. NC 27602. 



105-266. 

Authority- G.S. 105-109: 105-109.1: 105-262. 



Fiscal Note: 




State Local Sub 


None 




^ 


CHAPTER 4 - GROSS F 


lECEII 



LICENSE TAXES 

SUBCHAPTER 4B - LICENSE TAXES 

SECTION .4300 - MANNER OF OBTAINING 
LICENSES FROM SECRETARY OF REVENUE 

.4301 APPLICATION FOR PRIVILEGE LICENSE 

Form D-202. the p r eadd r essed ap p lication to r pr ivilege 



Notice is hereby given that the North Carolina Department 
of Revenue intends to amend the rules cited as J 7 NCAC 4C 
.1101.. 1801. and repeal the rules cited as 1 7 NCAC 4C .0603: 
4E .0201. 

Editor's Note: G.S. 150B-l{d){4) exempts the Departtnent of 
Revenue from Part 2 Article 2A of Chapter 150B with respect to 
the notice and hearing recjuirements. The Departtnent will 
however publish the text of proposed rules in the North Carolina 
Register prior to the scheduled time of review by the Rules 
Review Commission. 



license, is mai l ed the early pan of June to the address of the Proposed Effective Date: .ful\ 1 . 2000 
p r eceding year's license. Fo r m D-202A. the non pr eadd r essed 



a pp lication fo r privilege license, may be o b tained either b y 
writing to North Ca r ol i na Department of Revenue. Business 
L i cense and Returns Unit. PO Box 25000. Raleigh. NC 27640. 
o r by contac ti ng a b r anch off i ce o f t h e Department of Revenue. 
Cither form may be used in mak i ng an a pp lication for a pri\ 
license. Remittance of t ax due must accompany any a pp 
for license. 



Authority- G.S. 105-104: 105-262. 

.4302 PRIVILEGE LICENSE 

A p r ivilege license i s i ssu e d fo r each t\pe license p urchased. 



Such a lice n se is evidence that the pr ivilege lic e nse tax is p aid 
for the pr ivilege o f can7ing on the business as described on the 



alone does not authorize the 



l ic ense : — Howeve r , tnis license 

pr actice of any p r ofession, business or trade fo r which a state 

qualification license is r equi r ed. 

Authority G.S. 105-33: 105-104: 105-262. 

SECTION .4400 - ENGAGING IN BUSINESS 
WITHOUT A LICENSE 

.4401 PENALTY PROVISIONS 

As Anicle 2. License Taxes, is p rovided w it h i t s own 
admin i s t rative prov i s i ons cover i ng penal t ies, penalties p r ovided 
t he r ein are applica b l e r a t he r t han penal t ies provided under G.S. 
1 05 -2 3 6. 

Authority G.S. 105-109: 105-262. 

.4402 RATE OF PENALTY; INTEREST 

Penal t y acc ru es a t t he r a t e o f fiv e p e rce n t pe r mon t h for each 
delinquen t mon t h o r frac t ion t he r eof, not t o exceed 50 p e i' cen t of 
the t ax. In t e r es t a t the rate es t ablished underG.S. 105-241.1(1) 
shall apply t o delinquent taxes specified under G.S. 105-109.1 
and t o refunds of overpaymen t of taxes in accordance wi t h G.S. 



Instructions on How to Demand a Public Hearing: Contact 
Mr. Keith Hartmann at (919) 733-8510 to discuss the proposed 
changes. If a hearing is desired, submit a written request for a 
hearing to Mr. Keith Hartmann at NC Department of Revenue. 
Corporate Tax Division. PO Box 871. Raleigh. NC 27602. 

Reason for Proposed Action: 

17 NCAC 4C .0603 - This Rule is uimecessaiy and inaccurate. 

It is unnecessary because it repeats the substance of G.S. 105- 

113.18(la). 

17 NCAC 4C .1101 - The due date of the return set out in the 

rule is Incorrect and the reference to the form will soon be 

inaccurate because the Department is revising the forms. The 

changes to the rule reflect the corrections and the form 

revisions. 

17 NCAC 4C .1801 -SL 98-212 repealed the 50<:}'c penalty- and 

made the tobacco taxes subject to the Article 9 penalties. The 

reference to the form will soon be inaccurate because the 

Departtnent is revising these forms. The changes to the rule 

reflect the previous legislative change and the form revisions. 

17 NCAC 4E .0201 - This Rule is uniwcessary and inaccurate. 

It is unnecessary because it repeats the substance of G.S. 105- 

1 13.83 aiul the list of forms is not current. 

Comment Procedures: Submit written conunents to Mr. Keith 
Hartmann at NC Departtnent of Revenue. Corporate Tax 
Division. PO Box 871 . Raleii^h. NC 27602. 



iscal Note: 






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1429 



NORTH CAROLINA REGISTER 



February 15. 2000 



14:16 



PROPOSED RULES 



CHAPTER 4 - GROSS RECEIPTS AND PRIVILEGE 
LICENSE TAXES 

SUBCHAPTER 4C - CIGARETTE TAX 

SECTION .0600 - CIGARETTE MANUFACTURER 



is due when the return is due. 



AurhorirvG.S. 105-113.6: 105-262. 



SECTION .1800 - MONTHLY REPORT, INVOICE, 
AND RECORD REQUIREMENTS 



.0603 TAX ON COMPLIMENTARY PACKS 

A cigarette manufacturer electing to use the monthly rep o r t 
method a ut ho ri zed under G.S. 105-113.10 fo r r e p o rti ng i ts 
d i st r ibut i on of complimentary c i ga r ettes nol othe r w i se exem p t 
>■ 105-1 13.. S shall file such r epo r t no late r than the 13th 



.1801 MONTHLY REPORT REQUIREMENTS 

ttr) — Wholesale deale rs and r etail dealers, liable for the tax 
unde r G.S. 105-113.35. must file monthly r e p o i ls on Form 
D-A-101 (Monthly Othe r Tobacco Products Excise Tax Re p o r t) 
w it h the Sec r eta r y within twenty days after the close of each 



day of the month following the close of the pr eceding month. month show in g tr ansactions fo r the p receding month. — This 

monthly r e p o r t is required whethe r or not any tax is shown to he 



l ay oi tne montn lonowmg me ci 

Remittance — covering — the — ciga r ette — tax — a p plicable — shaH 
accom p any the r e p o r t. 



due. The Secretary will provide the forms which must be filled 
out in detail, aiui any remittance must accom p any these re p orts. 



AurlwrirxG.S. 105-113.5: 105-113.10: 105-262. 



(b) Failu r e to f i le a timely r e p o r t w i th tax du e fo r the 



th 



SECTION .1100 



RAILROADS AND OCEAN-GOING 
VESSELS 



.1101 DEALERS ON TRAINS 

Railroads — operatrrrg — inte r state — and — having — non-tax- p aid 



t il e a tnneiy r e p o r t w i tn tax au e to r tne mon 
w i ll res u l t i n the Depa r tment of Revenue d i sallowing the 4 
pe r c en t discount fo r t i mely p ayment a n d adding a 50 p e r cent 
p e n alty and a pp l i cable inte r est. 

A tobacco products wholesale dealer or retail dealer licensed 
under G.S. 105- 1 1 3.36 must file a monthly return in accordance 



with G.S. 105-1 13.37. A return must be filed each month even 
invento i y of c i ga r ettes are p e r mitted to sell cigarettes b y the if no tax is due for that month. 
pack, but such carriers shall pr ocure pe r mission from the 

sec re ta r y t o mak e such sales and shall re p o r t all sales made Authority G.S. 105-1 13.37: 105-262. 
w i thin No r th Carolina to the Office Examination Divis i on. 



fr 



and Return U ni t of t h e depa r tment on o r befo r e SUBCHAPTER 4E - ALCOHOLIC BEVERAGES TAX 



usi n ess License ana Ketum 
the 1 5th day of each month. — Such r e p o r ts s h a l l be on Fo r m 
D-A-17 (M o nthly Re p ort of Sales of Ciga r ettes b y Deale r s on 
T r ains and Co m m er cial Ai r lines) pr esc r ibed by the depa r tment 



SECTION .0200 



MONTHLY REPORTS: PAYMENT 
OF TAX 



fo r that 



and shall show all sales fo r the i mmediate 



p u rp ose, and snail snow a l l sales to r tne n nmedi: 
pre ced i ng month. A r emittance fo r the face amount of the excise 



tax due t he state on such sales shall be submitted with the 



report 



.0201 FILING OF MONTHLY REPORTS 

Monthly repons. as follows, pr ovided by the Sec r eta r y of 



Railroads that sell non-tax paid cigarettes on trains traveling in Revenue, shall be fil e d w i th the No i th Ca r ol i na Depa i lment of 
North Carolina must file a monthly return with the Depanment. 
The return must be filed on a form prescribed by the Secretary 
and must state the amount of non-tax-paid cigarettes sold on the 



Il e a w i tn tne rMonn Ca r ol in a 
Revenue, license a n d excise tax d i vis i on. Raleigh. No r th 
Carolina, on or befo r e the 15th day of each month covering 
transactions in alcoholic beve r ages fo r the pr eceding month b y 



train in this State during the month. A return is due by the 20 ' 
of each month. The tax on cigarette sales reported on the return 



t hose licensees requir 
where applicable: 



• ed t o file, t oge t her wi t h remi t tance of t ax 



Repor t Form 
t-H D-C-710 

(a D-C-715 



T o Be Filed By 

Residen t beer wholesaler and 

impor t er. 

Bee r manufac t urei ' and nonresiden t 



Wi t h Tax 



f3l B-C-761 

(^ B-C-775 

t5l D-C-776 

t&i B-C-780 

fh B-C-783 

m B-C-784 

t^ D-C-787 



Dealers on t rains (beer sales). 

A. B.C. Boa r ds. 

Dealers o n ti' a i ns (spiri t uous 

liquor sales). 

Dealers on t rains ( unfoi l ified 

wine sales). 

Resident unfor t ified wine 

wholesaler and importer. 

R e siden t fortified wine 

Unfor t if i ed wine man u f ac t u rer 



^ 
X 

X 

X 

X 

X 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1430 



PROPOSED RULES 




and nonresident wholesale r . 
Fonit'ied w in e m anufactu r er 
and n on r esident wholesale r . 
Non r es i dent shi pp e r s of bulk 
wine to authorized r esident 
bottlers. 



Authorises. 105-113.76: 105-113.83: 105-113.84: 105-262. 



^*^^;}j:i:*^:j;:[;^^:t:^:};:ii^^*^ 



AND INSURANCE TAXES 



Notice is hereby given that the North Carolina Department 
of Revenue intends to amend the ride cited as 17 NCAC 5C 
.0703, and repeal the rides cited as 1 7 NCAC 5B .0603, .0803, 
.0903 : 5C .2003 . 

Editor's Note: G.S. 150B-l(d)(4) exempts the Department of 
Revenue from Part 2 Article 2A ofCliapter 150B with respect to 
the notice and hearing requirements. The Department will 
however publish the te.xt of proposed rules in the North Carolina 
Register prior to the scheduled time of review by the Rules 
Review Commission. 



SUBCHAPTER 5B - FRANCHISE TAX 
SECTION .0600 - TELEGRAPH COMPANIES 
.0603 FORM TO BE USED FOR FILING 



Nm 



) s p ecif i c fo n n is pr ovided by the Sec r elar\' for r epo r tiiig t he 
franchise or p r ivilege tax on teleg r a p h com p anies, therefore the 
co rpor ation shall devise a fo r m to be used for filing to include a l l 
information pr escribed by G.S. 105-1 19. 

Authority G.S. 105-119: 105-262. 



Proposed Effective Date: July 1,2000 

Instructions on How to Demand a Public Hearing: Contact 
Mr. Billy Daniel at (9I9i 733-8510 to discuss the proposed 
changes, [fa hearing is desired, submit a written request for a 
hearing to Mr. Billy Daniel at NC Department of Revenue. 
Corporate Tax Division, PO Bo.x 871. Raleigh, NC 27602. 

Reason for Proposed Action: 

17 NCAC SB .0603, .0803, .0903 - These rules are either 
obsolete or unnecessary. Rules 5B .0603 and .0803 are 
obsolete: there are no ta.xpayers in the category of telegraph 
company or street bus company. Rule 5B .0903 is unnecessary 
and somewhat inaccurate. 

17 NCAC 5C .0703 - This rule is amended to describe more 
circumstances in which dividend income can be business, as 
opposed to nonbusiness, income. The current rule gives onix 
one example and may create the incorrect implication that the 
example given is the only circumstance in which dividend 
income can he business income. The changes clarify the rule 
and more accurately reflect the Department's interpretation in 
this area. Technical changes are also made to this Rule. 
17 NCAC 5C .2003 - This Rule is unnccessaiy because it 
repeats G.S. 105-241.1 and G.S. 105 -236. February 7. 2000 

Comment Procedures: Submit written comments to Mr. Billx 
Daniel at North Carolina Department of Revenue, Corporate 
Tax Division, PO Box 871. Raleigh, NC 27602. 



Fiscal Note: 






State Local 


Sub 


None 



CHAPTER 5 - CORPORATE FRANCHISE. INCOME, 



SECTION .0800 - STREET TRANSPORTATION 
COMPANIES 

.0803 CORPORATION BILLED FOR THE TAX 

The r e is no fo r m to be completed b y the co rp o r ation fo r the 
compulation of franchise o r pr ivilege tax on street transpo rt ation 
com pan ies, rathe r it is billed to the co rp oration by the Corporate 
Division. 

Authority G.S. 105-120.1: 105-262. 

SECTION .0900 - MUTUAL BURIAL ASSOCIATION 

.0903 CORPORATION BILLED FOR THE TAX 

There i s no for m to be completed by the co rp o r ation for the 
compu t ation of franc h ise or privilege t ax on domes t ic mu t ual 
burial associa t ions, ra t he r i t is t o be billed t o t he corpora t ion by 
t he Cor p orate Div i sion. 

Authority G.S. 105-121.1: 105-262. 

SUBCHAPTER 5C - CORPORATE INCOME TAX 

SECTION .0700 - BUSINESS AND NONBUSINESS 
INCOME 

.0703 BUSINESS AND NONBUSINESS INCOME 

The classification of income by the labels cus t omarily given 
them, customary labels, such as interest, rents, royalties, or 
capital gains, is of no aid in detemiining whether that income is 
business or nonbusiness income. The For example, income from 
property or the gain or loss recognized on the sale of prope i ly. 
t o r example, property may be business income or nonbusiness 
income depending upon ttte ]ts relation to the taxpayer's trade or 
business: business. Income may be business income even 



1431 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



ihouuh the transaction or activity that gave rise to the income did Authority G.S. 105-130.4: 105-262. 
not occur in this State- 
Income js business income unless it is clearly classifiable as 
nonbusiness income. A taxpayer must establish that its 
classification of income as nonbusiness income is proper. The 
followinti list iiives examples of when an item of income is 
considered business income: 



( 1 ) Rental income from real or tangible personal property 
constitutes business income when the rental of the 
property is a principal business activity of the 
taxpayer or the rental of the property is related to or 
incidental to the taxpayer's principal business activity. 

(2) A gain or loss from the sale, exchange, or other 
disposition of real or personal property constitutes 
business income if the property while owned by the 
taxpayer was used in the taxpayer's trade or business 
or was used to produce business income. Howeve r , 
the gain or loss will c onstitute non b us i ness income 
providing: income, unless for at least three years 
before the disposition the following statements apply: 

(a) the The property was subsequently utilized 
used principally for the production of 
nonbusiness income fo r a p eriod of at least 
t h r ee yea r s p r io r to the disposition: and 
income. 

(b) the The property was reflected as nonbusiness 
on the corporate income tax returns filed for 
those years. 

(3) Interest income is business income if the intangible 
with respect to which the interest was received ar ise s 
arose out of or was created by a business activity of 
the taxpayer and in those situations where the pu r pose 
for acqui r ing is or if the acquisition of the intangible 
di r ectly with respect to which the interest was 
received was related to the business activity of the 
taxpayer. 

(4) Dividend income is business income when dealing in 
securities is a princi p al busin e ss acti vi ty of th e 
t axpayer, if an^ of the following circumstances 
applies: 

(a) The dividend arose out of or was acquired in 
the regular course of the taxpayer's trade or 
business. 

(b) The taxpayer's purpose in acquiring or holding 
the stock with respect to which the dividend 
was received was related to the taxpayer's 
trade or business. 

(cl The dividend is received from a unitary 
subsidiar\ of the taxpayer. 

(5) Patent and copyright royalties are business income if 
the patent or copyright was created or used as an 
integral part of a principal business activity of the 
taxpayer. 

(6) Property that a taxpayer includes in the property factor 
of its apportionment formula or for which the 
taxpayer takes a deduction against business income is 
presumed to be an integral part of the taxpayer's 
regular trade or business operations. 



SECTION .2000 - EXTENSION OF TIME FOR FILING 
RETURN 

.2003 INTEREST AND PENALTIES 

Inte r est acc r ues at the r ate established p u r suant to G.S. 
105-241.1(1) on a n y lax p aid afte r the date set by statute fo r 
f i l i ng the r etu r n. The statuto r y due date fo r filing a co rp or atton 
f r anchise and i ncome tax retu r n is o n o r befo r e the 15th day of 
the th ir d m o n th following the close of the co rp o r ation's income 
year. A penalty for failu r e to file of five p e r cent o f the total 
taxes due is incurred each month a return is delinquent with the 
min i mum p enalty being five dolla r s ($5.00) and the maximum 
p enalty being 25 pe r cent, in addition the corpo r ation is subject 
to the failure to p ay by due date penalty of 10 percent. Both 
penalt ie s are applicable p u r suant to G.S. 105-236. 

Authority G.S. 105-236: 105-262. 

Notice is hereby given that the North Carolina Department 
of Revenue intends to repeal the rule cited as 1 7 NCAC 5C 
.0702. 

Editor's Note: G.S. 150B-l(d)(4) e.xempts the Department of 
Revenue from Part 2 Article 2A of Chapter 150B with respect to 
the notice and hearing requirements. The Department will 
however publish the text of proposed rules in the North Carolina 
Register prior to the scheduled time of review by the Rules 
Review Commission. 

Proposed Effective Date: .fulx 1. 2000 

Instructions on How to Demand a Public Hearing: Contact 
Mr. Jack Harper at (919) 733-8510 to discuss the proposed 
change. If a hearing is desired, submit a written recjuest for a 
hearing to Mr. Jack Harper at NC Department of Revenue. 
Corporate Ta.x Division, PO Box S71 . Raleigh. NC 27602. 

Reason for Proposed Action: The rule is repealed because it 
is incorporated in revised Rule 17 NCAC 5C .0703. which is 
being amended at the same time. 

Comment Procedures: Submit written comments to Mr. Jack 
Harper at North Carolina Department of Revenue. Corporate 
Tax Division. PO Box S7 I.Raleigh. NC 27602. 



Fiscal Note: 






State Local 


Sub 


None 



CHAPTER 5 CORPORATE FRANCHISE, INCOME, 
AND INSURANCE TAXES 

SUBCHAPTER 5C - CORPORATE INCOME TAX 



14:16 



NORTH CAROLINA REGISTER 



Februan 15, 2000 



1432 



PROPOSED RULES 



SECTION .0700 



BUSINESS AND NONBUSINESS 
INCOME 



.0702 BUSINESS AND NONBUSINESS INCOME 
DEFINED 

The business i ncome of the tax p ayer is that p o r tion of the 
tax p ayer's enti r e net i ncome which arises from the conduct of the 
taxpayer's trade o r bus i ness o p e r ations. — For pui " poses of 
adm i nistration of G.S. 105- 1 30.4. the income of the tax p aye r is 
bu siness income unless classified as nonbusiness i ncome unde r 
the law and these Rules. 



Authority G.S. 105-130.4: 105-262. 

Notice is hereby given that the North Carolina Department 
of Revenue intends to amend the rules cited as 17 NCAC 66 
.0605. .3503. and repeal tlie rule cited as 1 7 NCAC 6B .3408. 

Editor's Note: G.S. 150B-l(d)(4) exempts the Department of 
Revenue from Part 2 Article 2A of Chapter 150B with respect to 
the notice and hearing requirements. The Department will 
however publish the text of proposed rules in the North Carolina 
Register prior to the scheduled time of review hy the Rules 
Review Commission. 

Proposed Effective Date: Julx 1.2000 

Instructions on How to Demand a Public Hearing (tnust he 
requested in writing within 15 days of notice): Contact Mr. Sam 
McEwen at (919) 733-356 to discuss the proposed changes. If 
a hearing is desired, submit a written request for a hearing to 
Mr. Sam McEwen at the North Carolina Department of 
Revenue. Personal Ta.xes Division. PO Box 871 . Raleigh. NC 
27602. 

Reason for Proposed Action: 

1 7 NCAC 68 .0605 - S.L. 99-342 recodified and revised most of 

the energy tax credits. The changes to this Rule reflect the 

legislative changes. 

17 NCAC 68 .3408 - S.L. 99-348 amended G.S. 105-266(c)(T I 

to provide that a waiver automatically extends the time in which 

a ta.xpayer can request a refund. This Rule conflicts with that 

legislative change and needs to he repealed. 

17 NCAC 68 .3503 - The Department no longer requires a copy 

of the federal partnership return to he submitted with the North 

Carolina partnership return. The rule is amended to reflect this 

change. 

Comment Procedures: Submit written comments to Mr. Sam 
McEwen at the Nortit Carolina Department of Revenue. 
Personal Ta.ves Division. PO Box 871 . Raleigh. NC 27602. 



Fiscal Note: 






State Local 


Sub 


None 



CHAPTER 6 - INDIVIDUAL INCOME TAX 



SUBCHAPTER 6B - INDIVIDUAL INCOME TAX 



SECTION .0600 - TAX CREDITS 

.0605 RESIDENTIAL SOLAR ENERGY EQUIPMENT 

A co rp o r ation that causes a sola r ene r gy system to be 
const r ucted or installed i n any r es i dent i al building used or sold 
b y the co rp oration fo r com m e r c i al o r business p ur p oses in No r th 
Ca r ol i na o r an individual, including an individual mem b e r of a 
p artne r shi p and an individua l s h a r eholde r of an S co rp o r ation. 
who causes a sola r ene r gy s yste m to be constructed o r i ns t alled 
in any building in North Carolina is allowed a solar e n ergy 
equipment credit. — The c r edit is limited to 40 p e r cent of the 
installat i on and equi p ment costs of the solar ene r gy system, not 
to exceed one thousand five hundred dolla r s ( $ 1 .500) p e r system 
o r p e r y e a r on any si n gle building or fo r each family dwelling 
unit of a multi-dwelling building. Installation of two systems in 
the same year which wo r k independen tl y of each othe r in one 
building will be limited to a maximum one thousand five 
hundred dollars ($1,500) c r edit. — How e ve r , i f two s ystems 
working i nde p endently we r e i nstalled in se p a r ate yea r s, an 
allowa b le credit, not to exceed one thousand five hund r ed 
dolla r s ($1,500) each yea r , would be allowed fo r each system. 
The credit is only allowable to the tax p aye r who owns o r 
cont r ols the build i ng at the time of installat i on o r to the owne r 
who fi r st occu p ies a b uilding o r the owner-lesso r who fi r st leases 
a build i ng constructed or modified for sale in which a solar 
ene r gy system is const r ucted o r insta lle d. 

(a) Scope. - This Rule describes solar energy equipment that 
qualifies under G.S. 1 05- 1 29. 1 6A for the tax credit for investing 
in renewable energy property when the equipment is placed in 
ser\'ice in a residential unit. A residential unit is a single-family 
dwelling or a dwelling unit m a multi-dwelling building. The 
rule does not address solar energ\ equipment for non-residential 
buildings. 

( 1 ) Limits. - The tax credit for investing in residential 
solar energy equipment is 35Vc of the cost of the 
equipment, subject to the 2^ residential unit 
maximum amounts set in G.S. 105-129.16A. The 
maximums vary depending on whether the equipment 
is for water heating, space heating or cooling, 
generating electricit\. or another purpose. Each 
maximum is an annual maximum that applies to each 
residential unit. The cost of the property includes the 
cost of installing it. The credit cannot exceed 50% of 
the tax liabilitN for the year, after that liabilit\' has 
been reduced by all other credits. Only one credit is 
allowed per system, regardless of the number of 
subsequent owners or owner-lessors. Tlie cost of 
repairs Repairs to an existing solar system wfH do not 
qualify for any additional credit: however, 
enhancements to an existing system could qualify f or 
a c r edi t provided t he taxpayer has no t ye t exceeded 
t he maximum one t housand five hundred dolla r s 
($1,500) c r edit allowed for t lie system, qualify up to 
the applicable annual maximum. The cost on which 



1433 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



the credit is based is the sales price less discounts, 
rebates, advertising, installation assistance, and name 
referral allowances paid to the purchaser or someone 
he or she designates, other similar reductions, and the 
fair market value of items given as inducements to 
purchase the solar energy system. If the allowable 
credit exceeds 5(.Wc of the tax liabilits for the \ear 
after being reduced by all other credits, the unused 
portio n of the credit ma\' be carried over for the next 
five succeeding years. 

A system is not a solar energy system for purposes of 
the tax credit until it is installed and fully functional. 
If an individual has paid for the system, but it is not 
yet installed and available for use during the year, no 
credit is allowed until the year in which the system is 
placed in service. 
(2) Items That Do Not Qualify. ;; Equipment. 
com p one nt s components, and other items not 
qualifying forthe as solar energy equipment tax c r edit 
include: 

(A) Insulation (except where otherwise noted in 
this Rule). 

Storm windows and stomi doors. 
Wood burning stoves and furnaces. 
Oil and gas furnaces, including replacement 
burners and ignition systems labeled as "energy 
efficient." 

Automatic set back thermostats. 
Heat pumps, including both air and water- 
source units. 

Evaporative cooling systems. 
To qualify for the tax credit, a solar energy system must conform 
to all applicable state and local codes and inspecting 
jurisdictions. The intent of the credit is to encourage the 
installation and use of equipment that takes advantage of the 
renewable resource, solar energy. Systems which only 
incidentally incorporate solar energy to sell other products do 
not satisfy the intent of this credit. Therefore, any portion of a 
system that serves an additional purpose to what is necessary to 
collect, store, and utilize solar energy either does not qualify for 
the credit or only a percentage of the cost qualifies in accordance 
with this Rule. 

(b) SOLAR ENERGY SYSTEMS. Solar energy is energy 
that is derived directly from sunlight (solar radiation). Solar 
energy property is equipment that uses solar energy to heat or 
cool a building or provide hot water or electricity to offset loads 
associated with the building. Solar energy property includes 
active, passive and solar-electric solar energy systems. A 
taxpayer claiming a solar energy equipment tax credit must 
designate on the North Carolina income tax return the type of 
solar system installed. 

(c) ACTIVE SOLAR ENERGY SYSTEM. An active solar 
energy system is capable of collecting solar radiation, convening 
it into heat, and transferring the heat to storage or to the point of 
use. Any solar system which has a fan. pump, or other 
mechanical means of moving the collection medium in the 
collection loop of the system is an active system. While the 
components, design, operation, and perfomiance of active 



(B) 
(C) 
(D) 



(E) 

(F) 

(G) 



systems will vary, to qualify for the tax credit the system must 
have the following capabilities: 

( 1 ) A means of collecting or absorbing sunlight to heat 
fluids (liquid, vapor or air). 

(2) A means of transporting the heated fluids directly to 
the point of use or to a thermal storage system to be 
distributed later for use. 

1 007f of the cost of the active solar system is eligible for the tax 
credit. Components of a solar system which serve an additional 
purpose to what is necessary for the active solar system (e.g. 
conventional heating systems, air conditioning, or domestic hot 
water systems) do not qualify for the credit. 

(d) SOLAR-ELECTRIC SYSTEM. A solar-electric system 
is a system that converts sunlight into usable electricity. This 
can be done by any one of a number of processes including 
photovoltaic and solar thermal-electric. These systems may be 
used to power direct current (DC) or alternating current (AC) 
devices. Some systems use the energy as it is produced while 
others require energy storage which allows the energy to be used 
as it is needed. 1 OO'yc of the cost of all parts of the system that 
are necessary to collect, sto r e a nd concert store, and convert 
solar energy into usable electrical energy is eligible for the 
credit. Portions of the system which serve an additional purpose 
to what is necessary for the solar-electric system do not qualify 
for the credit. 

Energy Storage System Limits. Energy storage systems capable 
of storing more than the equivalent of 50 hours of the solar 
collector's peak perfomiance shall be considered excessive and 
shall not qualify for the credit. 

Example: A photovoltaic system with a maximum collector 
output of 500 Watts. Maximum allowable battery storage size 
would be 25.000 Watt-hours or 25kWh. (calculation: 50()^ Watts 
x 50 peak hours = 25.000 Watt-hours = 25 kWh) 

(e) PASSIVE SOLAR ENERGY SYSTEM. A passive solar 
energy system is an assembly of components which is designed 
to provide a net energy savings to a building from solar energy, 
using non-mechanical means of moving heat from the collection 
area to themial storage. All qualifying equipment and materials 
must be integral parts of a system designed to collect, convert, 
transport or control energy derived directly form sunlight. To 
qualify as a passive solar energy system, the following elements 
must be present: 

( 1 ) solar collection surface; 

(2) themial storage; and 

( 3 ) control and distribution elements. 

These three elements must be designed to work together as a 
whole. 

Items which only incidentally provide passive solar benefits are 
not eligible. For example, southfacing glass is only eligible if 
part of a complete system with thermal storage and control and 
distribution elements. Components which serve a dual function 
in a building are not fully eligible for the tax credit. 
There are two exceptions to the solar system criteria (requirmg 
all three elements). The first is a thennosiphoning collector, 
which may be used without themial storage. Themiosiphoning 
collectors, sometimes know known as dayheaters or window box 
heaters, qualify for the tax credit. The second exception is a 
"sun-tempered" house. The limited solar collection surface 



14:16 



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Eebruary 15, 2000 



1434 



PROPOSED RULES 



allows the contents of the house to sei^e as the themial mass to 
keep the house from overheating. 

Eligibility requirements are established below according to 
subsystem type and individual component type. 

(A) Solar Collection Surfaces: All solar collection 
surfaces must be oriented to within 30 degrees 
of true south for new construction and within 
45 degrees of true south for retrofits. Solar 
collection surfaces must be no more than 25 
percent shaded on December 2 1 between 1 1 
a.m. and 2 p.m. (December 21 is the day when 
the sun is at the lowest angle in the sky). Solar 
collection inust be designed so as not to cause 
additional heat gain to the conditioned area of 
the building in the summer. Solar collection 
surfaces include: 

(i) South-facing windows. These must be 
at least double-glazed or equipped with 
moveable insulation having an 
insulating value of a least R-3 to prevent 
nightime heat loss. They must also be 
shaded to prevent direct sunlight from 
entering the conditioned area at noon on 
June 21 (June 21 is the day when the 
sun is at the highest angle in the sky). 
The percentage of windows eligible for 
the solar energy equipment tax credit is 
calculated using the worksheet in 
Paragraph (g) of this Rule. The purpose 
of the calculation is to detemiine that 
portion of south-facing windows which 
have been added to improve passive 
solar perfomiance. The fomiula does 
this by taking into account the amount 
of windows on the non-south walls of 
the house to ensure that credit is given 
to houses that have more windows on 
the south side than any other orientation, 
(ii) Attached solar greenhouses and other 
"sunspaces". These must be double- 
glazed or equipped with moveable 
insulation having an insulating value of 
at least R-3. They must also have a 
means of distributing the solar heat into 
the conditioned area of the adjacent 
building. The greenhouse or "sunspace" 
must have a specifically designed 
distribution method to facilitate or 
enhance the convective flow. 
Greenhouses or other sunspaces which 
do not provide solar heat to an adjacent 
building or which require heat from 
non-solar sources to maintain inside 
temperature for any reason are not 
eligible for the tax credit as a 
"sunspace." If supplementary heating is 
used in a "sunspace", the classification 
shall change, and the space may qualify 



under section a. South-facing windows. 

50% of the cost of glazing and 

accompanying structural components, 

including foundation, framing, siding, 

insulation, and roofing materials, is 

eligible for the credit. Thermal storage, 

and control and distribution elements 

are eligible according to the formulas 

listed for those categories. For 

prefabricated sunspaces in which 

component costs are not provided, 50% 

the cost of the sunspace is eligible for 

the credit. 

(iii) Trombe wall or water- wall glazing. 

1 00% of the cost of glazing and framing 

mounted no more than two feet in front 

of a thermal storage wall is eligible for 

the credit, provided that its sole function 

is for the collection of solar energy. 

(iv) Skylights. 100% of the cost of skylights 

located on a south-facing roof having a 

pitch of 8-12 (34 tilt angle from 

horizontal) or greater is eligible for the 

credit. These must be double-glazed or 

equipped with moveable insulation 

having an insulating value of at least R- 

3. 

(V) Thermosiphoning collectors. 100% of 

the cost of solar collectors that operate 

on thennosiphoning principles and that 

serve no other function besides solar 

collection is eligible for the credit. 

These include solar window box 

heaters, thermosiphoning water and air 

panels, and "breadbox" solar water 

heaters. 

(B) Thermal Storage Elements: Devices or 

materials specifically designed for the storage 

of solar energy are eligible for the solar energy 

equipment tax credit. These materials must 

either be exposed to direct sunlight in the 

heating season or have a specific means of 

transporting solar energy to the themial storage 

element. These materials must be located 

within the insulated shell of the building or 

enclosed by fixed or moveable insulation or 

double-glazing. Masonry products used as 

thermal storage in walls or floors must be a 

minimum of two inches thick. Materials which 

are not specifically designed for thermal 

storage, such as hot tubs, swimming pools, 

single layer gypsum board, wood paneling and 

flooring, linoleum tile, masonry walls and 

floors not exposed to direct sunlight during the 

hearint; heatiniz season, and floors covered with 

caipeting are not eligible for the credit. 100% 

of the cost of qualifying thermal storage 

elements is eligible for the credit. 



1435 



NORTH CAROLINA REGISTER 



February IS, 2000 



14:16 



PROPOSED RULES 



(C) Control and Distribution: Devices that are 
specifically designed to control heat loss or 
heat gain or to distribute heat energy from a 
passive solar energy system are eligible for the 
solar energy equipment tax credit. These 
include: 

(i) Moveable insulation. 1 00% of the cost 
of moveable insulation devices is 
eligible for the credit provided they have 
an R-value of at least 3 and seal tightly 
against the window frame. Standard 
draperies and curtains do not qualif)'. 
(ii) Shading devices. 100% of the cost of 
devices used to shade solar collection 
surfaces is eligible for the credit, 
provided that these devices shade no 
portion of the collection surface at noon 
on December 2 1 and completely shades 
shade the collection surface at noon on 
June 21. Adjustable or removable 
awnings, solar screens, and lattice work 
used to support vines are examples of 
shading devices. Overhangs that meet 
the above criteria and extend more than 
12 inches will be eligible. Trees. 
shrubbery and other vegetation are not 
eligible, nor are interior shading devices 
such as shades or blinds. 
( iii ) Ducts, fans, vents, backtlow preventers, 
etc... 100% of the cost of these items is 
eligible for the credit if designed 
exclusively as part of the solar energy 
distribution (not collection) system. 
Although fans are not technically 
passive elements, some passive systems 
may use fans to assist the natural 
convective flows to improve system 
performance. Ceiling fans, attic fans 
and free standing fans are not eligible 
for the credit, 
(iv) Controls. 100% of the cost of 
thermostatic controls or other controls, 
sensors and equipment is eligible for the 
credit when designed as part of the solar 
system. 
(f) Glossary. When using this Rule, the following tenns 
mean: 

( 1 ) collection loop - that part of a solar energy system 
which first collects solar energy, converts it to heat 
and moves the heated media to a themial storage 
mass, distribution system or point of use. 

(2) collector - a device which collects solar radiation and 
converts it to heat. 

(3) conditioned area - any space within the shell of a 
building which is artificially heated or cooled at any 
time. 

(4) double-glazing - two separate layers of glazing 
enclosing air to create an insulating barrier. 



(5) glazing - a covering of transparent or translucent 
material used for admitting light. 

(6) greenhouse - a "sunspace" the primary purpose of 
which is to grow plants. 

( 7 ) heat gain - an increase in the amount of heat contained 
in a space, resulting from direct solar radiation and 
heat given off by people, lights, equipment, machinery 
and other sources. 

( 8 ) heat loss - a decrease in the amount of heat contained 
in a space, resulting from heat flow through walls, 
windows, roof and other building envelope 
components. 

(9) heating season - the period in North Carolina from 
October to May. 

(10) photovoltaic - the process of generating electricity 
from light. 

(11) retrofit - the addition of a solar energy system or other 
device to an existing home. 

(12) R-value - a unit of thermal resistance used for 
comparing insulation values for different materials: 
the reciprocal of thermal conductivity; the higher the 
R-value of a material, the greater its insulating 
properties. 

(13) skylight - a clear or translucent panel set into a roof to 
admit sunlight into a building. 

(14) sun-tempered - a house having a south-facing window 
area which is less than 7% of the floor area, window 
areas less than 7% of the floor area on the other 
exterior walls, and no specifically-designed thermal 
storage element. The limited solar collection surface 
allows the contents of the house to serve as the 
thermal mass to keep the house from overheating. 

(15) sunspace - also known as a Florida room, solar 
greenhouse or solarium. A structure added onto or 
incorporated into a building that is specifically 
designed to collect solar energy, but also serves as 
additional living space to grow plants by virtue of 
allowing human access. A sunspace is themially 
isolated from the rest of the building by walls, 
windows or doors. 

(16) thermal storage - a device or medium specifically 
designed and constructed to absorb collected solar 
heat and store it for later use. 

( 17) thennosiphoning - the convective circulation of fluid 
or air which occurs when wami fluid or air rises and 
is displaced by cooler fluid or air in the same system. 

(18) Tombe Trombe wall - a passive heating system 
consisting of a vertical masonry wall with glazing in 
front. Solar radiation is absorbed by the wall, 
converted to heat and transferred to the building by 
convection, radiation or combination thereof. 

(19) water wall - an interior wall of water-filled containers 
used for solar energy collection and storage. 

(g) PASSIVE SOLAR ENERGY SYSTEM WORKSHEET. 
Solar Collection Surfaces 
South-facing windows 
( 1 ) Find the total area of windows on all exterior walls by 
multiplying the length times the width of the 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1436 



PROPOSED RULES 



area inside the frames. sq. ft. 

(2) Find the area of south-facing windows by multiplying 
the length times the width of the area inside 

the frames. sq. ft. 

(3) Subtract line 2. from line 1. sq. ft. 

(4) Find the area of the north, east and west-facing walls 
by multiplying the length of each wall times the height 
from floor to ceiling. sq. ft. 

( .S ) Find the area of the south-facing wall by multiplying 
the length times the height from floor to 
ceiling. sq. ft. 

(6) Divide line 5. by line 4. sq. ft. 

(7) Multiply line 6. by line 3. sq. ft. 

(8) Subtract line 7. from line 2, sq. ft. 

(9) Divide line 8. by line 1. to find the percentage of 
windows eligible for the tax crediL 

( 10) Multiply line 9. by the total cost of exterior windows 



IMPORTANT: This form worksheet must be retained with your 
tax records for examination by the North Carolina Department 
of Revenue. It will be a necessary supporting document, 
together with other substantiation for the credit claimed on your 
tax return, for active, passive, and solar electric systems. 

AiithoriryG.S. 105-J29.J5: 105-J29.16A: 105-262. 

SECTION .3400 - STATUTE OF LIMITATIONS AND 
FEDERAL CHANGES 



.3408 WAIVER OF TIME LIMITATION 

A waive r of t ime limitation unde r G.S.I 05-24 1 . 



1(e) does no t 



extend the limitation of time for refund. 



Auihonn- G.S. 105-241.1: 105-262: 105-266: 105-266.1. 
SECTION .3500 - PARTNERSHIPS 

.3503 PARTNERSHIP RETURNS 

(a) When Required. ;:; A North Carolina partnership re t urn 
(Form D-403). return. Form D-403. must be filed by every 
partnership doing business in North Carolina if a federal 
partnership return was required to be filed. The partnership 
return ^diatt must be filed on or before April 1 5 if on a calendar 
year basis and on or before the 15th day of the fourth month 
following the end of the fiscal year if on a fiscal year basis. For 
individual income tax purposes, the term "business carried on in 
this State" means the operation of any activity within North 
Carolina regularly, continuously, and systematically for the 
purpose of income or profit. A sporadic activity, a hobby, or an 
amusement diversion does not come within the definition of a 
business carried on in this State. Income from an intangible 
source, including gain realized from the sale of intangible 
property, which is received in the course of a business carried on 
in this State so as to have a taxable situs here (including sttch 
income which is i ncluded in the distributive share of partnership 
income, whether distributed or not ) is included in the numerator 
of the fraction used in detennining the portion of federal taxable 
income that is taxable to North Carolina bv a nonresident. The 



return must include the names and addresses of the individuals 
entitled to share in the net income of the partnership and must be 
signed by the managing partner and the individual preparing the 
return. 

(b) NC K-1. ;; A partnership must provide a completed 
Schedule NC K- 1 . or similar schedule, to each person who was 
a partner in the partnership at any time during the year reflecting 
that partner's share of the partnership's income, adjustments, tax 
credits, and tax paid by the manager of the partnership. The 
schedule must be provided to each partner on or before the day 
on which the partnership return is required to be filed. When 
reporting the distributive share of tax credits, a list of the amount 
and type of tax credits must be provided each taxpayer. 

(c) A co p y of the fede r al Pa r tne r sh ip Income Tax Retu r n. 
Form 1065. and all schedu l es, includ i ng each K-l must be 
attached to the North Carolina p a r tne r ship r etu r n. 

t&) (c_) Investment Acitvity. ;; In determining whether a 
partnership is carrying on a trade or business in North Carolina 
if its principal business activity is "investments," all facts and 
circumstances must be considered. Determining factors include 
all of the following: 

( 1 ) ttie The extent of business operations in this State, 
including maintaining having an office, numbe r of 
employees, property, or bank transactions in this 
State: State. 

(2) the The source of principal income (interest and 
dividends versus gain from the sale of securities). 
securities). 

(3) the The length of time securities are held (long-term 
holding of securities for capital appreciation versus 
short-term trading for p r ofit), profit, 

(4) volume The volume of transactions and value of 
securities bought and sold. 

If a partnership's only activities within North Carolina are in the 
nature of an investment account in which the securities are held 
for capital appreciation and income, the receipt of dividends and 
interest and the occasional sales of stocks and bonds does do not 
constitute carr\'ing on a trade or business in this Slate. — A 
nonresiden t partner shall no t include his Slate, and a nonresident 
partner's distributive share of t he partnership's this income in is 
excludable from the numerator of the fraction in de t ermining 
used to determine the nonresident partner's North Carolina 
taxable income. If the activities of the partnership are extensive, 
the partnership is dee m ed considered to be engaged in a trade or 
business and a nonresiden t partner mus t include his dis t ribu t ive 
share of t he partnership's i ncome in t he numera t or, business, and 
a nonresident partner's distributive share of this income must be 
included in the numerator of the fraction used to detemiine tne 
nonresident partner's North Carolina taxable income. 

Aut/iorlfyGS. 105-152iaH2]: 105-154(0: 105-262. 

Notice i.s hereby given that the North Carolina Department 
I if Revenue intends to amend the rules cited as 1 7 NCAC 7B 
.0104. .011,H, .0123. .0207. .1401. .1404. .1601-. 1602. .1702. 
.1801-. 1802. .1902. .221.^. .2401-.2402. .2801. .2901. .3001. 



1437 



NORTH CAROLINA REGISTER 



February' 15. 2000 



14:16 



PROPOSED RULES 



.3004, 3009. .3013. .3204. .4301. ,4303. and repeal the rules 
cited us 17NCAC 7B .1402. .2903. .3010. 

Editor's Note: G.S. 150B-l{d}{4) e.xempts the Department of 
Revenue fi'om Part 2 Article 2A of Chapter 150B with respect to 
the notice and hearing requirements. The Department will 
however publish the te.xt ofproposed rules in the North Carolina 
Register prior to the scheduled time of review hy the Rules 
Review Commission. 

Proposed Effective Date: ,/;//v 1.2000 

Instructions on How to Demand a Public Hearing (nmst he 
requested in writing within 15 days of notice): Contact Mi-. Tim 
Holmes at (919) 733-2 l.'^l to discuss the proposed changes. If 
a hearing is desired, submit a written request for a hearing to 
Mr. Tim Holmes at the North Carolina Department of Revcinie . 
Sales and Use Ta.\ Division. PO Box S7 1. Raleigh. NC 27602. 

Reason for Proposed Action: 

17 NCAC 78 .0104 - The Department has changed the way it 

processes sales and use ta.x returns. The proposed changes to 

Paragraph (c) of this Rule conform to the new requirements. 

The changes to Paragraph if) of this Rule reflect the changes 

made hyS.L. 99-34 L 

17 NCAC 7B .0118 - S.L. 99-438 repealed the $15.00 

registration fee. effective January 1 , 2000. The rule is changed 

to reflect the repeal of the fee. 

17 NCAC 7B .0123 - This change corrects an incorrect 

statutory reference to the definition of "conunercial fishing 

operations" and rearranges the substance of this rule. 

17 NCAC 7B .0207 - S.L. 98-121 repealed the requirement for 

wholesale merchants to obtain a license. The change in this 

Rule reflects the repeal of that license. 

17 NCAC 7B .1401:1402, .1801-.1802, .2401 -.2402 - S.L. 99- 

43S exempted all prescription drugs from sales and use ta.x. 

17 NCAC 7B .1404 - S.L. 99-43S exempted certain durable 

medical supplies from sales tax. 

17 NCAC 7B .1601 - This Ride is amended to delete information 

that is repeated in other rules and to rearrange the rule in a way 

that is easier to understand. 

17 NCAC 7B .1602, .1702 - These rules are amended to delete 

information that is repeated in other rules, to delete parts that 

repeat the statutes, to delete the incorrect reference to a 6-month 

refund claim period. 

1 7 NCAC 7B .1902- S.L. 99-438 repealed the sales and use ta.x 

exemption for trade-ins. 

17 NCAC 7B .2213 - S.L. 99-438 increased the amoimt of a tip 

that is not subject to sales and use ta.x from 15'7c to 20%. 

17 NCAC 7B .2801 - S.L. 99-360 recodified part of one of the 

sales ta.x statutes. 

17 NCAC 7B .2901 - The rule is amended to specify what a soft 

drink is for purposes of the application of sales ta.x on items sold 

in vending machines, to specif}- how to calculate the combined 

State and Mecklenburg 6 112% ta.x. to incorporate the current 

Rule .2903 and delete unnecessary language. 

17 NCAC 7B .2903 - The substance of this Rule is being 

combined with 17 NCAC 7B .2901 . With this combination, the 



rule is no longer needed. 

17 NCAC 7B .3001, .3004, .3009-.3010. .3013 - S.L. 99-438 

repealed the sales ta.x exemption for trade-ins. 

17 NCAC 7B .3204 - S.L. 99-360 recodified part of one of the 

sales ta.x statutes. 

17 NCAC 7B .4301, .4303 - S.L. 99-360 added fuel to the list of 

items for which interstate carriers can obtain a refund. 

Comment Procedures: Submit written comments to Mr. Tim 
Holmes at the North Carolina Department of Revenue. Sales 
and Use Tax Division. PO Bo.x 871. Raleigh. NC 27602. 



Fiscal Note: 






State Local 


Sub 


None 



CHAPTER 7 - SALES AND USE TAX 

SUBCHAPTER 7B - STATE SALES AND USE TAX 

SECTION .0100 - GENERAL PROVISIONS 

.0104 RETURNS 

(a) General. -- G.S. 105-164.16 establishes the filing 
frequency of sales and use tax returns and the content of the 
returns. G.S. 105-164.4(c) requires a retailer and a wholesale 
merchant to register with the Department and obtain a certificate 
of registration. G.S. 105-164.6 requires a retailer who delivers 
property for storage, use. or consumption but does not have a 
place of business in this State to register with the Department 
and obtain a certificate of registration. A person who is engaged 
in business, is not otherwise required to file a sales and use tax 
return, and, on two or more occasions within a twelve-month 
period, purchases property subject to use tax must register with 
the Department and begin filing sales and use tax returns. A 
person who is engaged in business, is not otherwise required to 
file a sales and use tax return, and purchases property subject to 
use tax only once in a twelve-month period must file a return and 
pay the tax due within 15 days after the end of the month in 
which the purchase was made. 

(b) Schedules. A retailer who files an estimated return for 
a semimonthly reporting period that reports tax payable by more 
than one location in the State must attach two schedules to the 
return. One schedule must list the amount of State tax due for 
each location in the State and the other must list the amount of 
local tax due for each count> . 

(c) No Sales or Purchases By Business. — A retailer who does 
not make any sales during a reporting period must file a return 
for that period and mark "no sales" enter 0.00 (zero) on the Total 
Due line on the return. Similarly, a person who is not a retailer 
but is engaged in business, purchases tangible personal property 
for the business that is subject to use tax. and does not make any 
taxable purchases during a reporting period must file a return for 
that period and mark "no purchases" enter 0.00 (zero) on the 
Total Due line on the return. 

(d) Seasonal Business. A retailer who engages in business 
for six or fewer consecutive months in each year may register as 
a seasonal filer and indicate the months in which the retailer 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1438 



PROPOSED RULES 



engages in business. A retailer who is registered as a seasonal 
filer is not required to file a return for an off-season reporting 
period in which the retailer did not engage in business. 

(e) Wholesale Merchant. -- A person who engages 
exclusively in the business of making wholesale sales is not 
required to file a return. A person who. on two or more 
occasions within a twelve-month period, either makes taxable 
sales to users, consumers, or nonregistered merchants or makes 
purchases subject to use tax is not engaged exclusively in the 
business of making wholesale sales and must begin filing sales 
and use tax returns. A wholesale merchant who is not required 
to file a sales and use tax return and who, on only one occasion 
within a twelve-month period, either makes taxable sales to 
users, consumers, or nonregistered merchants or makes 
purchases subject to use tax must file a return and pay the tax 
due within 15 days after the end of the month in which the sale 
or purchase was made. 

(f) Non-Business Use Tax. — An individual who is not 
engaged in the business of selling tangible personal property at 
retail and who purchases for a non-business purpose tangible 
personal property that is subject to use tax must report the tax 
due on an annual basis. An individual who is required to file an 
individual income tax retum must pay the use tax with the 
individual income tax return for that year. An individual who is 
not required to file an individual income tax retum must report 



the tax due on Form E-554. 
annually by the date set under G.S. 



Form E-354 is due 



105-164.16. 



AiithoriryGS. 105-104.3: 105-104.16: 105-262: 105-269.14. 

.0118 CHANGE IN OWNERSHIP 

When a partnership dissolves and one or both more of the 
former partners b e g i n ope r at i ng a starts a new business on an 
individual basis, each p e r son o p e r ating a business shall com p lete 
an a p pl i cation for registration and pay the r egistration fee. new- 
business must complete an application for registration. When a 
partnership or proprietorship is succeeded by a co rp o r ation, the 
corporation shall complete an application for r egistration and 
r emi t t he fee . a new business entity, the new entity must 
complete an application for reizistration. 

Aiirhonrv G.S. 105-164.4: 105-262. 

.0123 COMMERCIAL FISHERMAN'S CERTIHCATE 

(a) A Commercial Fisherman's Ce rt ificate. Form C-558. may 
be comple t ed by a person who f i shes commercially and accep t ed 
b y a re t a i l or wholesale me rc ha nt as t he merchan t 's au th ori t y t o 
sell t o a comme r c i al fish e r man boa t s, fue l o i l. lub r ica t ing oils, 
machinery, equipmen t , ne t s, rigging, p ain t s, p ar t s, accessories 
and s upplies, such as pain t brushes, acetylene, oxygen, pain t 
r ollers, funnels, sandim: discs, weldins: rods, saw blades, drill 



;lud i nu foul wea t her 



bits, and smiilar p r oper t y, mclud u ig t ou l w e a t ner gea r , gloves 
and life vests, for us e b y the m pr i n ci p ally in commercial fishing 
operations wi t hou t charging and remi tt ing any sales or use tax 
t hereon. Comme r cia l fishing opera t ions is defined in Ci.S. 1 1,'^- 
152. Commercia l fishing opera t ions include chai t er boat and 
head boa t o p era t ors when t hey operate under a charter or as a 
head boa t taking p e ople fishing for hire, bu t does n o t i n clude 



p ersons p rincipally taking fish fo r recreation or p e r sonal use or 
consum p tion. 

(b) To be exempt f r om sales o r use tax unde r the p r ovisions of 
G.S. 105- 1 6 4.1 ■'^(9). the p r o p e r ty must be of a ty p e named 
therein and must be so l d t o p ersons fo r use by them p rincipally 
in comme r cial fishing o p e r ations. 

(c) Cach cenificate shall be pre p ared i n duplicate and a copy 
r e t a i ne d by the commercial fisherman and by the me r chant. 

(d) Th e ce r tificate may not b e used to purchase food, clothing, 
o r othe r p ersonal effects of comme r cial fishe r men othe r than 
foul weather gear, gloves, and life vests fo r use in commercial 
fishing o p e r ations. Sales t o commercial f i she r men of tablewa r e, 
tooth p aste, soap, or other p e r sona l effects of comme r cial 
fishe r men are subject to the four p e r cent State tax and any 
a p plicable local sales o r use tax. Sales to comme r cial fishe r men 
of food are subject to Stat e tax at the r ate set in G.S. 105- 
164.4(a) (5 ) and any applicable local sales tax. 

(e) Pe r sons who catch fish or other seafood for recreation or 
their own use or consumption and not fo r sale a r e not eligible t o 
use a Comme r cial Fisherman's Ce r tif i cate. — Sales of tangible 
p ersonal p ropeny to p e r sons fo r use in taking marine mammals, 
shellfis h , crustaceans, and all othe r fishes fo r rec r eational o r 
p erso nal use o r consumption are subject to the fou r percent state 
tax and any appl i cable loca l sal e s o r use tax. 

(f) Vendo r s that do not choose to use the Comme r cial 
Fishe r man's Certificate must m aintain othe r evidence in writing 



adequate to su pp o r t the conck 



that suc h sa le s a r e exem p t 



conc l us i on tnat suc n sa 
f r om tax in acco r dance with the pr ovisions of G.S. 105- 
164.13(9). 

(a) Certificate. _ A commercial fishemran may apply for a 
Commercial Fishennan's Cenificate, Form E-588. The 
cenificate authorizes a retailer or a wholesale merchant to whom 
it IS presented to sell property that is exempt from sales and use 
tax under G.S. 105-164.1.^(9) to the commercial fisherman 
without collectiniz sales and use tax. A retailer or a wholesale 
merchant who does not collect tax on an item sold to a 
commercial fishennan and does not have a certificate to support 
the tax-free sale must have other written evidence that supports 
the tax-free sale. 

(b) Items Covered by Certificate. The items listed in G.S. 
105-164.13(9) can he purchased under a Cominercial 



Fisherman's Certificate if the items are to be used principally in 
commercial fishinu operations. Commercial fishing operations 
include charter boat and head boat operations that charge people 
to take them fishing. Items that can be exempt under G.S. 105- 
164.13(9) and, therefore, purchased under a certificate include 
paint brushes, paint rollers, acetylene, oxygen, funnels, sanding 
discs, welding rods, saw blades, drill bits, foul weather gear, 
gloves, and life vests. These items are exempt if they are for use 
principally in commercial fishing operations. 

(c) Items Not Covered B\ Certificate. Only items that are 
described in G.S. 105-164.13(9) and are for use principally in 
commercial fishing operations are exempt from tax and therefore 
eligible to purchased under a cenificate. Items for personal use 
by a commercial fisherman are not exempt under G.S. 105- 
164.13(9) and, therefore, ma\ not be purchased under a 
certificate. Personal items include tableware, toothpaste, soap, 
food, and clothmg. except possibly foul weather gear, gloves, 



1439 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



and life vests. Items for use in catching marine mammals, fish, 
shellfish, and crustaceans for recreation or personal use or 
consumption are not exempt and cannot be purchased under a 
certificate. 

AiirlwriryG.S. 105-164.4: 105-164.6: 105-164.13: 105-262. 

SECTION .0200 - GENERAL APPLICATION OF LAW 

TO MANUFACTURING AND INDUSTRIAL 

PROCESSING 

.0207 PURCHASES BY MANUFACTURERS 

A manufactu r e r who p u r chases taxable tangible p e r sonal 
pro p erty fo r use in the b usiness is Purchases of tangible personal 
property by a manufacturer for use in its manufacturing business 
are subject to use tax. A manufacturer who owes use tax must 
report and pay the tax in accordance with the filing requirements 
for a wholesale merchant. This r equi r ement ap p lies even if the 
manufacturer is not r equi r ed to obtain a license as a wholesale 
merchant. 

AitihontyG.S. 105-164.6: 105-262. 

SECTION .1400 - SALES OF MEDICINES: DRUGS 
AND MEDICAL SUPPLIES 

.1401 PRESCRIPTION DRUGS 

Sales of d r ugs o r medic i nes on w r itten p rescription of a 
physician or de n tist and in s ul i n, whe t he r or not sold on 
pr esc r iption, a r e exempt f r om sales o r use tax. — Sales of 
nonprescription medicines o r d r ugs, othe r than insulin, to users 
or consumers are subjec t to the fou r percent state and any 
a pp licable local sales o r use tax. Fo r the p urpose of th i s Ru le. 
the le ini "physician" does not include a doctor of chiropractic. 



Sales of drugs o r medicines p u r suant to a physician's o r den t is t's 
telephone (oral) p r esc r i p tion a r e exempt from sales o r use t ax 
provided the presc r i p tion is r educed to writing, signed by the 
pharmacist and filed in the same manner as an original w r itte n 



uti 



prescrip t ion. The t erms "medicines" and "drugs" shall mean 
medicines in the generally accep t ed sense of t he term and also 
i nclud e t onics for in t e r nal use. vi t amins, ointmen t s, linimen t s, 
an t isep t ics, anes t he t ics, serums, and o t her remedies having 
preven t ive — and — cura ti ve — proper t ies — in — medical — t rea t ment. 
Medicines or drugs sold pursuan t t o t he r efilling of a physician's 



or den t is t 's prescri pt ion are likewise exempt from t he t ax. 
Vendors making sales of medici n es o r drugs pursuan t t o 
physicians' or den t is t s' pr escrip t ions or in I' efilling t he same must 
keep sales records which will clearly segrega t e such presci ip i ion 
sales. All original prescrip t ions mus t be filed and ke p t ava i l ab le 
fo r i n s p ection by the Sec r e t ary of Revenue or h i s a uth o r ized 



t he sell e r's 



agen t . When a sale i s made t o re f ill a prescrip t ion, t he sel 
r ecords must indica t e t he original p r escription number. 

Prescription drugs are exempt from sales and use lax. This 
applies regardless of whether the drug is used b\' a physician or 
another medical provider in administering treatment to a patient. 

AuthorirvG.S. 105-164.13: 105-262. 



.1402 MEDICINES: SALES TO PHYSICIANS 

Physicians, dent i sts and hospitals a r e considered to be the 



users o r consumers of medic i nes and d r ui: 



: has e 



r s of medicines and a r ugs which they pu r er 
fo r use in administering t r eatment t o the ir p a ti ents: the r efore, 
sales thereof to physicians, dentists and hospitals fo r such use 
are su b ject to the four pe r cent state tax and any applicable local 



sales o r use tax. and this i s t r ue not w ithstanding 



;h medicines 



I IS I S t r ue not w itnstand i ng sucn medic i 
a nd d r ugs may be of the ty p e usually sold only on the 
pr esc r i p tio n of a p hysicia n o r dentist. If a physic i an or dentist 
should, i n fact, make out ri g ht sales of medic i nes o r d r ugs to his 



p atie n ts o r to othe r cons u me r custome r s, such sa l es a r e exem p t 
f r om sales o r use tax pr ovided su c h medic i nes o r drugs a r e sold 
o n w ri tten p r esc rip tion of the p hysician o r dentist, or another 
physician o r den t ist, and a r eco r d is made of each such sale and 
kept, along with the w r itten pr es crip tion, as a p art of the seller's 
p ermanent r eco r ds. — If a hos p ital maintains a p harmacy from 
which sales of drugs and medic i nes a r e made to individuals o r to 
patients fo r thei r use afte r they leave the hos p ital, such sales a r e 
exem p t from tax provided they are made on written prescr ip tion 
of a physician or dent i st and a record of the sale and th e 
prescription is kept in the manner described in 17 NCAC 7B 
.1401. An entry on a p atient's medical r eco r d c a r d o r cha r t of 
medicines or drugs fo r such patient does not me e t the 
r equi r ements of a w r itten pr esc r i p t i on. Physicians, denti s ts an d 
hos p i t als m ak in g sales of me dic i nes and d r ugs, as set forth in 
this Rule, may p u r cha s e the med i c i nes and d r ugs which they will 
r esell o r use in administe r ing t r eatment to t hei r patients without 
p ayment of tax to thei r vendo r s if the physician, dentist or 
hos p ital making the p urchase has registe r ed w i th the Department 
of Revenue for sales and use tax puiposes and furnished his 
vendo r pr o p e r ly executed ce r tificates of resale. Form E-590. In 
such cases, the physicians, dentists or hospitals become liable fo r 
remitting the four p e r cent state tax and any applicable local sales 
or use tax directly to this Depaiimeni on the cost price of the 
m ed i c i nes and d r ugs which they use in administe r ing t r eatment 
to the ir p a t ients, and t he medicines and d r ugs sold on written 
pr esc r ipt i on for subsequent use by the pa t ie n t will be exempt 



Authority G.S. 105-164.4: 105-164.6: 105-262. 

.1404 MEDICAL SUPPLIES AND EQUIPMENT 

Sales to physicians, dentists, hospitals, or other users or 
consumers of medical supplies, medical ins t rumen t s, medical 
equi p men t , instruments and laboratory equipment used to 
diagnose, prevent, treat, or cure disease are subject to applicable 
state and local sales or use tax. Sales of medical equipment and 
medical supplies are also subject to applicable state and local 
sales or use tax, unless their sale js exemp t under G.S. 103- 
164.13( I2)d. That statute exempts from lax durable medical 
equipment and related medical supplies that are covered under 
the Medicare or Medicaid program and are sold on either a 
certificate of medical necessit\ or a written prescription. Items 
listed below are subject t o tax: i t ems tax, unless their sale is 
exempt under G.S. 1().S-I64.I3( 12)d. Items not included in the 
list may also be subject to tax: 

( 1 ) Adhesive tape 

(2) Alcohol 



14:16 



NORTH CAROLINA REGISTER 



Eehruan- 15, 2000 



1440 



PROPOSED RULES 



(3) 


Bandages 


(4) 


Battery chargers 


(5) 


Bed pans 


(6) 


Betadine solution 


(7) 


Blood glucose monitors 


(8) 


Blood glucose test/reagent strips 


(9) 


Blood or urine control strips 


(10) 


Breathing circuits 


(11) 


CO/2 saturation monitors and accessories 


(12) 


Cotton 


(13) 


Crutch and cane holders 


(14) 


Cylinder tank carriers 


(15) 


Dial-a-dose insulin delivery devices 


(16) 


Dressings 


(17) 


Exam gloves 


(18) 


Gauze 


(19) 


Knives 


(20) 


I.V. hangers 


(21) 


I.V. poles 


(22) 


Lancets 


(23) 


Microscopes 


(24) 


Mouthpieces 


(25) 


Needles 


(26) 


Peak tlow meters 


(27) 


Percussors 


(28) 


Pulse oximeters 


(29) 


RoUabout chairs 


(30) 


Scissors 


(31) 


Sterile water 


(32) 


Surgical gloves 


(33) 


Syringes 


(34) 


Tracheal suction catheters 


(35) 


Tracheostomy care kits 


(36) 


Tracheostomy cleaning brushes 


(37) 


Tracheostomy masks and collars 


(38) 


Tubing, sold by the linear toot or otherwise 


(39) 


Urinals 


(40) 


Urine test or reagent strips or tablets 


(41) 


X-ray machines 



Autlumn- G.S. 105-164.4: 105-164.6: 105-164.13: 105-262. 

SECTION .1600 - SALES TO OR BY HOSPITALS: 
EDUCATIONAL: CHARITABLE OR RELIGIOUS 
INSTITUTIONS: ETC.: AND REFUNDS THERETO 

.1601 SALES TO OR BY NONPROFIT ENTITIES 

(a) Sales of t axable t angible p e rsonal prop e rt y t o hospitals no t 



- a t ed fo r 



opera t ed tor pro tit . edu c a t ional ins tit u t ions no t oper; 
profi t , churches, o rp hanages, and o t her chari t able or religious 
ins t i t u t io ns o r o r ganiza t ions no t opera t ed for profi t are subjec t 
t o sales or use t ax when such prope rt y i s purchased for use or 
consump t ion. Sales of building mate ri als, su p plies, fix t ures, and 
equi p men t t o con t rac t o r s fo r use in the perfo r mance of contrac t s 
w it h any ins t i t u t loii or o r ganization named in this Rule are also 
subjec t to sales or use t ax. 

fbl — Sales of t angible personal propei l y t o nonprof i t 
organi z ations such as chambers of comme rc e, civic clubs. 



f r ate r nities, soro ri ties o r othe r f r aternal, c i vic o r p at r iotic 
o r gan i zations for us e o r consum p tion are subject to sales or use 
tax and su c h o r ganizations are not entitle^ to any refund. 

(c) When any institution o r o r g a n i zation named in this Rule 
makes taxable p u r chases of tangible pe r sonal p ro p e r ty from a 
No r th Ca r olina sup p liero r a re giste r ed out-of-state supplier who 
cha r ges the North Ca r olina and any a pp licable local sales o r us e 
tax the r eon, such ins t itution o r o r ganization must remit the tax 
on such pur chases to the su pp lier. — Any such institution or 
organizat i on making taxable pu r chases of tangible p e r sonal 
property f r om an out-of-state su pp lie r who does not collect the 
No r th Carolina and a n y a pp licable local sales o r use tax the r eon 
is requi re d to r egiste r with the department and file r e tu r n s 
monthly with remittance of the tax due o n s uch pu r chases. Any 
such institu t ion o r o r ganization which does not owe any tax fo r 
a given month shall file a report refle c t i ng no t a x due. 

tdl — If any institution o r o r ganization named in this Rule 
makes taxa b le r etail sales, it must register with the de p artment 



and c o llect and remit the tax du e on 



jles. The r efund 



collect ana remit tne tax ou e on sucn saP 
provisions contained in 17 NCAC 7B .1602 do n ot apply to the 
t ax on such s al es and no pa r t t he r eof shall be r efunded or 
claimed as a refund. — I nstitutions and o r ga niza tions pr o p e r ly 
registered fo r sales and use tax p u rp oses may p u r chase the 
tang ible p e r sonal p roperty which they r esell without paying tax 
thereon to t he ir suppliers pr ovided they have fu r nished such 
su p plie r s with p r ope r ly executed certificates of r esale. Form 
C-590. Certificates of resale may n ot be used by any institution 
or organization named i n this Rule, o r by any othe r vendee, in 
making p u r chases of tangible p ersonal property to be used o r 
consumed b y such pu r c h ase r . 

(a) Sales To Nonprofits. — Sales of taxable tangible personal 
property to a nonprofit entity for use or consumption by that 
entity are subject to sales or use tax. Nonprofit entities include 
hospitals not operated for profit, educational institutions not 
operated for profit, churches, and civic groups such as chambers 
of commerce, fraternities, sororities, and scout clubs. Sales of 
building materials, supplies, fixtures, and equipment to 
contractors for use in the performance of contracts with a 
nonprofit entity are also subject to sales or use tax. A nonprofit 
entity must pay sales tax charged on its purchases and is liable 
for use tax on its purchases when no sales tax is collected. A 
nonprofit entity that owes use tax must file a return in 
accordance with 17 NCAC 7B .0104. 

(b) Sales By Nonprofits. Sales by nonprofit entities are 
subject to sales or use tax unless a specific exemption applies to 
the sale. A nonprofit entity that makes taxable retail sales must 
register with the Department and file sales and use tax returns. 
A nonprofit entit\ that js registered with the Department may 
obtain a Certificate of Resale. Form E-590. The certificate 
cannot be used for items the nonprofit entity intends to use or 
consume. 



Aiithontx G.S. 105-164.4: 105-164.6: 105-164.13: 105-262. 

.1602 REFUNDS TO NONPROFIT ENTITIES 

(a) Eligibility. - The r efund provisions con t ained in t his Rule 
do no t apply t o t he t ax on taxable sales b y t he non p rofi t en t i t ies 
named in G.S. 105-164. 14(b) a n d no part t hereof shall b e 



1441 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



r efunded o r claimed as a refund. Nonprofit en t ities registered for 
sales and use tax pur p oses may purchase the tangible p e r sonal 
p ro p e r ty w hi ch they resell without p aying tax th e r e on t o t h ei r 
s upp lie r s provided they have fu r n i shed such su pp lie r s with 



C- S M(). 



properly — executed — L e r tit i cates — ot — Kesaie. — lo r m 
Certificates of r esale m ay n ot be used by any no npr of i t entity in 



maki 



to b e u s ed o r 



ving p u r chases of tangible personal p r o p e r ty to Pe u s e 
c o n su m ed by such p urchase r . A nonprofit entity listed in G.S. 



106-164. 14(b) may file a claim for refund tor sales or use tax 
paid by it on items purchased for its use and for sales and use tax 
paid indirectly by it on buildini; materials, supplies, fixtures, and 
equipment that become part of a buildine rt owns or leases and 



which is ow n ed o r leased by a non pr ofit entity fo r use by a 
non pr of i t e n t i t>' named i n G.S. 105-1 6 4. 14(b> forca r ry i ng o n its 
non pr ofit act i vi t i e s. A claim for refund for sales or use tax paid 
indirectly on buildin;: materials, supplies, fixtures, and 
equipment must be supported by adequate documentation 
showing the amount paid. Adequate documentation is a certified 
statement from the contractor or subcontractor that purchased the 
items. The statement must indicate the item purchased, the 
vendor from whom it was purchased, the invoice number of the 
purchase, the cost of the item, and the amount of sales or use tax 
paid. Only items that become part of a buildine the nonprofit 
entity owns or leases and uses to conduct Us nonprofit activity 



uses to conduct its nonprofit activity. A claim for refund must are eligible for a refund. A contractor mav not include in its 



be filed on a lorm provided by the Department. A claim for 
refund applies to taxes paid durine the period for whic h the 
claim for refund is filed. 

rtr) — All r efund claims shall be substantiated b y pr oper 
documentary pr oof and only the taxes actually p aid by the 
claimant du r ing the p eriod fo r which the claim for r efund is filed 
may be included in the claim. — Any local sales o r us e t axes 
included in the claim shall be separately stated i n t he c laim for 
refund. — In cases where more than one county's tax has been 
paid, a breakdown shall be attached to the claim showi n g the a p ply to nonp r ofit f r ate r nal, c i v i c o r pat r iotic o r ganizat i ons, 
amount of each county's local tax sepa r ately. notwithstanding t hat such o r ganizations may p e r fo r m certain 

tOib] Proof for Direct Purchases. — As to taxes p aid on the cha r itable fu n c t ions. The r efund p r ovisi on s s e t fo r th in this Rule 
claimant's p u r c h ases fo r use. othe r than those made by do not a pp ly to n o npr ofit entities which a r e owned and 
contracto r s pe r fo r ming work fo r the claimant, invoices o r copies cont r olled by the Un i ted States, the state o r a un i t of local 
of invoices show in g the prop eny purchased, the cost the r eof, the government exce p t hos pi tals and medical accommodations 
date of pu r chase and the amount of state and local sales or use 



statement items the contractor purchased and used to fulfill the 
contract but did not become pan ot the building constructed. 
Examples of pr o p e r ty on which sales o r use tax has been pa id by 
the contracto r and wh i ch shall items that are not be included in 
the contractor's statement are scaffolding, fomis for concrete, 
fuel for the operation of machinery and equipment, tools, 
equipment repair parts, equipment rentals rentals, and blueprints. 
(e) The r efund p rovisions set forth i n this Rule a pp ly only to 
the non p rofit entities described in G.S. 1 05- 1 64. 1 4( b), but do not 



tax paid during the r efund pe r iod shall constitute p roper 
documentai"y proof. A claim for refund must be supported by 
documentation showing the amount of tax paid. For items 
purchased by a nonprofit entity for its use, adequate 
documentation is an invoice or copy of an invoice that sets out 



c r eated under the Hosp i tal Authorities Law. A r ticle 2 of G.S. 
1 3 IE and nonprofit hos p itals owned and cont r olled by a unit of 
local gove r nment that elect to r ece i ve sem i annual refunds under 
G.S. 105-164. 14(b) instead of annual r efunds under G.S. 105- 
164.14(c). Any non p rofit hos p ital owned and controlled by a 
unit of local government may submit a written request to receive 



the item purchased, the date of the purchase, the cost of the item. semiannual refunds underG.S. 105-164. 14(b) instead of annual 

and the amount of sales or use tax paid. refunds unde r G.S. — 105- 164. 14(c). — The request shall be 

tth {£} Proof for Contractor Purchases. - To substa n tiate a effective b eginning with the six-months r efu n d period following 

the date of the r equest and a p plies to sales or use taxes paid on 



r efund cla i m fo r sales o r u se taxes paid on purchases of building 
materials, supplies, fix t ures and equipmen t by i t s con t rac t or, t he 
claiman t shall secure from such con t ractor cer t ified s t atemen t s 
setting for t h t he cos t of t he property purchased from each vendor 
and t he amoun t of sta t e and local sales or use t axes paid t he r eon. 
In t he even t t he con t ractor makes seve r al purchases from the 
same vendo r , such certified s t a t ement shall indicate t he i nvoice 
numbers, t he inclusive da t es of t he invoices, th e tot al amoun t of 



thr- 



-Sttch 



invoices a n d t h e sales and use taxes paid t hereon. — ^ract 
s t atemen t shall also include t he cost of any t angib l e pe r sonal 
property wi t hdrawn from the con t rac t or's warehouse s t ock and 
t he amoun t of s t a t e and l oc al sales or use t ax p ai d t he re on by the 
con t ractor. — S i milar cer ti fied s t atemen t s by h i s subcon t rac t o r s 
shall be ob t ained by t he general contrac t or and furn i shed t o t he 
claimant. — Any local sales or use t axes included in the 
con t rac t or's s t a t e m en t s shall be shown se p arately from the s t a t e 
sales or use t axes. The contractor's s t a t emen t s shall nut contain 
sales or use t axes pa id o n purchases of t a n gible p ersonal 
p roperty by such con t rac t ors for use in perto rmi ng t he con tr act 
which does no t annex t o. affix t o or i n some manner b e com e a 
part of t he building o r s tr uc t ure being erec t ed, al t ered or repaired 



or af t er t he firs t day of t he refund period for which t he reques t 
is effec t ive. 

tfl Id] Items Not Refundable. ^ The refund provisions of this 
Rule do not apply to sales taxes incurred by employees on 
purchases of food, lodging, or other taxable travel expenses paid 
by employees and reimbursed by a nonprofit entity listed in G.S. 
105-164. 14(b). These expenses are personal to the employee 
because the contract for food, shelter, and travel is between the 
employee and the provider and payment of the tax is by the 
employee individually and personally. In this circumstance, a 
nonprofit entity has not incurred any sales tax liability and has 
not paid any sales tax: instead; it has chosen to reimburse a 
personal expense of the employee. The refund provisions of this 
Rule do not apply to any of the following: 

( 1 ) Charges by a u t ility for elec t r i ci t y, electricity and 
local, toll, or private telecommunications services. 

(2) Occupancy taxes levied and administered by certain 
counties and cities in this s t a t e. Stale. 

(3) Prepared food and beverage taxes levied by various 
local governments in this s t ate. State. 



14:16 



NORTH CAROLINA REGISTER 



February 15. 2000 



1442 



PROPOSED RULES 



(4) Highway use taxes paid on the purchase, lease, or 
rental of motor vehicles. 

(5) The white goods disposal tax levied on new white 
goods. 

(6) The scrap tire disposal tax levied on new tires. 

(7) The dr\'-cleaning solvent tax levied on dry-cleaning 
solvent purchased by a dry cleaning facility. 

Authorises. 105-164.14: 105-262: 105-264. 

SECTION .1700 - SALES TO OR BV THE STATE: 

COUNTIES: AND OTHER POLITICAL 

SUBDIVISIONS 

.1702 REFUNDS TO COUNTIES, CITIES, AND 
OTHER GOVERNMENTAL ENTITIES 

tzi G.S. 105-164. 14(c) lists the governmental entities that are 
allowed an annual refund of sales and use taxes as well as the 
sales and use taxes for which a refund is allowed. The r efund 

^thttt 



equi p ment by its cont r actor, the claima n t s h al l s ecu r e f r om such 
cont r actor certified stateme n ts setting fo r th the cost of the 
pro p e r ty p u r chased f r om each vendo r and the amount of state 
and local sales o r use taxes p aid the r eon. — In the event the 



cont r ac t or makes seve r al 



ce r t i f i ed statement sh^ 



p urchases from the same vendor, such 
I indicate the invoice numb er s, the 



allowed unde r G.S. 1()5-I ( i4. 14(c) does not ap p ly to taxes ' 
a r e noi r efundable unde r 17 NCAC 7D .1 6 ()2(f). The entities 
hsted are eligible for refunds of sales and use taxes paid on their 
purchases to the same extent as otiier nonprofit entities. Rule 17 
NCAC 7B .()6()2 addresses refunds for nonprofit entities. 
Govemmenlai entities must file an annual claim for refund, 
however, instead ot a semiannual claim for refund. The annual 
claim requirement does not apply to a hospital or another 
medical facility that is an aeency of a county or city and has 
received approval from the Secretary to file a claim for refund 
on a semiannual basis. Rule 17 NCAC 7B .1802 explains this 
approval process. 

(b) Non pr ofit hosp i tals owned and controlled by a unit of 
local gove r nment may file claims fo r r ef un d of s ales and use 
taxes on a semiannual basis unde r the provisions of G.S. 105- 
1 6 4.14(b) ra the r than file annually as a p a r t of t h e local 
gove r nment. — In o r de r to file semiannually, the hos p ital shall 
submit a written reques t to the Secretary of Revenue and the 
r equest shall be effect i ve b e g i nning w i th the six- m o n th r efund 
p e r iod fo llowin g th e da t e of t he requ est a n d ap p lies t o sales a n d 
use t axes paid on or af t e r t he firs t day of the refund p eriod fo r 
which t he reques t i s effective. 

txn — All refund clan n s mus t be subs t an t ia t ed by piT ip ei ' 
documen t an proof and only those t axes ac t ually pai d by the 
cla i man t dur i ng t he f i scal year cove r ed by t he refund claim may 
be included In t he claim. Any local sales or use t axes mcluded 
in t he c l aim mus t b e s e p a rat e ly s t at e d in t he claim foi ' r efund. In 
cases whe r e mo r e t han one coun t y's sales and use t ax has been 
paid, a b r eakdown mus t be a tt ached t o t he claim for refund 
showing the amount of each coun t y's local t ax sepa r a t ely. 

(d) As t o t axes paid by governmen t al en t i t ies on purchases fo r 
use. o t her t han t ho s e made b y c on ti' ac 

th e cl a ima nt, i n vo i ces o r copies of invoices showing t he propen\ ' 
p u r chased, t he cos t t her e of, the da t e of purchase, the amoun t of 
st ate and local sales or use t ax paid t he r eon and a reco r d 
re f lec t ing — the — dttte — of — paymen t — shaH — cons t i t ute — proper 
documentan proof. 

(e) To subs t an t ia t e a refund claim for sales o r use t axes paid 
on purchases of build in g ma t erials, suppl i es, fix t ures, and 



inclusive dates of the invoices, the total amount of the i nvo i c e s, 
and the state and local sales and use taxes paid the r eon. Such 
statement shall also include the cost of any tangible p e r sonal 
pr o p eny withdrawn f r om the cont r actor's wa r ehouse stock and 
the amount of state and local sales or use tax paid thereon by the 
contractor. Simila r ce r tif i ed statements by his subcontracto r s 
shal l b e obtained by the gene r al contracto r and furnished to the 
claimant. — Any local sales o r us e taxes i ncluded in the 
cont r acto r 's statements shall be shown se p a r ately f r om the sta t e 
s a les o r use ta xes. Tlie cont r actor's statements shall not contain 
sales or use taxes paid on pu r chases of tangible personal 
pr o p e r ty p u r chased by such cont r ac t o r s fo r use in pe r forming the 
contract which does not annex to. affix to or in some man n e r 
b eco m e a p a r t of the building or st r uctu r e being e r ected, alte r ed 
o r r e p ai r ed that is owned o r leased by a governmental e n tity fo r 
u se by the governmental entity as defined by G.S. 105- 164. 14(c). 
Exam p les of pr operty on which sales o r use tax has bee n p aid b y 
the contracto r and which shall not be included in the contracto r 's 
s t atement a r e scaffolding, forms fo r conc r ete, fuel for the 
o p eration of machineiT and equi p ment, tools, equipment re p air 
p ans, equipme n t rentals and b lueprints. 

Authonn- G.S. 105-164.14: 105-262. 

SECTION .1800 - HOSPITALS AND SANITARIUMS 

.1801 SALES TO AND BY HOSPITALS AND 
SIMILAR INSTITUTIONS 

(a) General. - Hospitals, sanitariums, nursing homes, and rest 
homes are primarily engaged in rendering services and are 
considered the users or consumers of all tangible personal 
property they purchase for use in connection with these 
institutions. These institutions are liable for payment of sales or 
use tax on their purchases of tangible personal property except 
as explained in this Rule. 

(b) Di - ugs and Medicines. - Hos p i t als, sani t ariums, nursing 
homes, and r es t homes ar e considered the useis or consumers of 
dmgs or medicines they admmis t er t o pa t ien t s. — Purchases of 
d r ugs or medicines, o t her t han insulin, b y t hese ins t i t u t ions fo r 
use are subjec t t o t he four percen t s t ate t ax and any applicable 
local sales o r use t ax. Sales of insulin are exempt f r om sales or 
use t axes whe t her or no t sold on p rescrip t ion. 
If one of t hese ins t i t u t ions operates a pharmacy from which it 
m akes ac r oss th e counter sales of medicines and drugs and from 

t o r s pe r forming work fo r which it p u r chases all medici n es and drugs used by i t in tr ea t ing 

p a t ien t s, then t he insti t u ti on may purchase drugs or medicines 



trom a sup pl ier wi t hou t p aymen t ot t ax i t ll i e ins t i t u t ion is 
regis t ered wi t h t he Depanment of Revenue fo i sales or use t ax 



:u t ed 



pur p oses and has furnished t lie sup p lier w it h a properly execi 
Ce rt i f i c a t e of Re s ale. Form C-59(). By e x ecuting the cert i fica t e 
of r esale, t he ins t i t u t ion assumes t he liabili t y for paymen t of and 
mus t pay di r ec t ly t o t he departmen t all sales or use taxes due on 



1443 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



d r ugs and medicines used by the institution in ca r ing fo r its 
p atients. — S ales of d r ugs and medicines by t i ie p lia r macy o n 
prescrip t ion of physicians and dentists a r e exempt f r om lax. 
Sales of d r ugs and medicines, othe r than insul i n, by the 
p ha r macy wit h out w r itten pr esc r i p t i ons of physicians o r dentists 
a r e subject to the fou r p e r cent slate tax and any ap p licable loc tti 
sales or use tax. 

td ib] Food. — Purchases of food by hospitals, sanitariums, 
nursing homes, or rest homes for use in furnishing meals to 
patients are exempt from State tax, but not th e t wo % local tax. 
if the food could be purchased under the Food Stamp Program. 
If food purchased by an institution could not be purchased under 
that Program, the food is subject to both State and local sales or 
use tax. If. in addition to furnishing meals to patients, one of 
these institutions operates a cafeteria from which it makes sales 
of prepared meals or food to guests, visitors, employees, staff, 
or other persons, the institution must register with the 
Department of Revenue and collect and remit the tax on its sales. 
If the food purchased by the institution for use in furnishing 
meals to patients cannot be distinguished from the food 
purchased for resale through the cafeteria, the institution may 
purchase all the food under a certificate of resale. An institution 
that does this assumes liability for payment of sales or use tax on 
food used in furnishing meals to its patients and on sales of 
ineals by the cafeteria. 

fth (cj Meals to Students. ~ Meals and food products sold by 
a hospital operated by a State or private educational institution 
to student nurses are exempt from tax in accordance with G.S. 
103-164.13(27). 

te^id] Purchases for Consumption. - Except as provided by 
Paragraphs (b) and (c) Paratiraph (b) of this Rule, a Ce r t i ficates 
Certificate of Resale, Form E-59(), may not be used by hospitals, 
sanitariums, nursing homes, or rest homes when making taxable 
purchases of tangible personal property for use or consumption. 
The tax due on taxable purchases from North Carolina suppliers 
or out-of-state suppliers who charge North Carolina sales or use 
tax must be paid to the suppliers. An institution that makes 
taxable purchases from an out-of-state supplier who does not 
collect and remit North Carolina sales or use tax must register 
with the department and remit monthly the tax due on the 
purchases. 

Authonn- G.S. 105-164.4: 105-164.6: 105-262: 105-467. 



.1802 



REFUNDS TO HOSPITALS AND SIMILAR 
MEDICAL FACILITIES 



-and 



ttrl Hos p i t als, — sanitar i ums, — religious — i ns t i t u t ions 

organiza t ions, chari t able nursing homes, and chari t able rest 
homes no t opera t ed fo i' profi t are entitled t o sem i annual refunds 
of sales and use t axes paid by t hem on t heir direc t purchases of 



for 



t angible personal property, including medicines and drugs, 
use in ca rr ying on t heir wo r k. Fo r t he purpose of the refund, 
sales or use t axes p aid by co nt r act o r s on t heir purchases of 
building m a t e r ials, supplies, fix t ures and equipmen t which 
become a par t of or are annexed t o a buildi n g o r s tr uc t ure being 
e r ected, al t ered or repaired under contrac t w it h such h osp i t als, 
sani t a r iums, chari t able nur sin g h o m es and char it able res t homes 
t ha t is ow n ed o r leased bv s u c h inst it utions and used in carrvinu 



on their non p rofit activities are deemed to be taxes p aid on direct 
pu r chases. 

(b) As to taxe s paid on p u r chases fo r use o t he r than those 
made b y cont r acto r s pe r fo r ming wo r k for the claima nt , invoices 
or co p ies of invoices showing the pr o p erty purchased, t he co s t 
thereof, the date of pu r chase and the amount of sales o r use tax 
pai d the r eon du ri ng th e re fund p e ri od shall constitute proper 
documentan ' proof. T o s ub s tantiate a r efund cla i m for sales or 



use taxes p aid on purchases of building mate r ia 



supplies. 



juaing mate r ials, sii 
fixtu r es and equipment by its contrac tor , the cla i mant shall 
secu r e f r om such contracto r certified stat e ments setting forth the 
co st o f the pr o p erty purchased from each vendo r and the amount 
of sales and use taxes paid the r eon. In the e v e n t the cont r actor 
makes seve r al p u r c h ases f r om th e same vendo r , the certified 
statements may i ndicate the invo i ce numbe r s, the inclusive dates 
of the invoices, the total amount of the invoices and the sales or 



use taxes p aid the r eon i n lieu o f an itemized listing of each 
s e p a r a te invoice. The statements shall also include the cost of 
any t angible personal pr operty withd r awn f r om the contractor's 
wa r ehouse stock and the amount of sales or use tax pa i d the r eo n 

by the contractor. Similar ce r tif ied — stateme n ts — by — his 

sub c ont r actors shall be obtained by the general contracto r and 
furnished to the clai m ant. 

tcl — Sales and use taxes p a i d by hospitals, sanita r iums, 
charitable nu r sing homes and charitable rest homes which are 
agenc i es of counties and inco rp orated cities and towns on thei r 
direct pu r chases of tangible p ersonal — property, — including 
medic i nes and d r ugs, and by their cont r actors on purchases of 
build i ng materials, su pp lies, fixtu r es and equi p ment becoming 
a p a r t of or annexing to a building o r structu r e being e r ected, 
alte r ed or repaired under cont r act with s uch institut i o n s that is 



also 



owned o r le aseo P y suc n i nst i tutions to r tnei r own use a r e . 
r efundable: howeve r , such refund shall be included in the cla i m 
filed by the county o r inco rp o r ated city o r town which i s to be 
filed within six months afte r the close of the claimant's fisc al 
yea r . The docume n ta r y pr oof as ex p lained i n Pa r ag r a p h (b) of 
this Rule shall be submitted to the county o r in co rp o r ated city o r 
town filing the claim. The r efund pr ov i sions a r e not a pp licab le 
to — hospi t als, — sani t a r iums, — c harit a b le — n u r sing — homes — and 
c haritab le res t homes which are ag e nc i es o f t he s t a t e or any 
p o l i t ical — subdivisions — t he r eo f — other — than — coun t ies — and 
incor p ora t ed ci t ies and t owns. Non p rofi t hosp it als owned and 
co ntr olled by a un it of local governmen t may file f o r a r efund on 
a semiannual basis under G.S. I03-I( i 4. 14(b) ra t her t han file 
annually as a part of the local govertimen t uni t . In order t o file 
semiannually, t he i ns t i t u t ion shall submi t a wr itt en request t o do 
so t o the Secretai7 of Revenue and t he reques t i s effec t ive 
beginning wi t h t he six-mon t hs refund pe r iod following t he da te 
of t he request and appl i es t o sales and use t ax paid on or after 
the firs t day of t he refund period for which t he r eques t is 
effec t ive. 

(d) The refund provisions set forth in Pa r ag r a p hs (a), (b) and 
(c) of this Rule aie not applicable l o t a x es p aid b \ h ospi t als, 
sani t ariums, religious inst itu t ion s and organiza t ions, chari t able 
nu r sing h o m es and c h ar it. i b le rest homes on their t axable sales 
a n d t h e se t axes shall no t be refunded or claimed as a refund. 
The r efund provisions are no t applicable t o sales t ax i ncu rr ed by 
employees on purchases of food, l odgings o r o t he r t axable t ravel 



14:16 



NORTH CAROLINA REGISTER 



Febniarv 15, 2000 



1444 



PROPOSED RULES 



expenses paid by employees and reimbu r sed by the inst i tution. 
Such expenses a r e p e r so n al to the em p loyee since tiie contract 



g r atuity in excess of 15 p ercent of the sales price is taxable. If 
p e r sons othe r than the aforementioned pe r sonnel share in the 1 5 



fo r food, shelte r a n d tr avel is between the em p loyee a n d the per cent se r vice charge or g r a t u i ty. tFie total amount the r eof is 

taxa b le. 

A service charge is exempt from sales tax under G.S. 105- 
164. 13A only if it meets the conditions in that statute. If a 



pr ovide r and payment of the tax i s by the em p loyee i ndiv i dual l y 



artd- 



pe r sonally and such tax shall not be r efunded unde r the 
p r ovisions of th i s Rule. The institution has i ncurred and p aid no 



sales tax liab i l i ty. In such cases, it has chosen to reim b urse a 
personal ex p ense of the em p loyee. 

(e) The r efund p rov i sions in th i s Rule do not a p ply to tax e s 
that a r e not refundable unde r 17 NCAC 7D .16()2(f). 

(a) Most Nonprofits. — Hospitals and other medical facilities 
that are listed in G.S. 105-164. 14(bl( 1 ) through (4) are eliiiible 
for refunds as nonprofit entities. Rule JJ NCAC 7B .0602 
addresses refunds for nonprofit entities. 

(b) County and City Facilities. - Sales or use taxes paid on 
purchases by hospitals and other medical facilities that are 
agencies of a county or city are refundable to the same extent as 
sales or use taxes paid on purchases by other nonprofit hospitals. 
but the county or city must file the claim for refund. This 
requirement applies unless the facility has submitted a written 
request to the Secretary to file a semiannual refund claim on its 
own behalf, rather than have its purchases included in the 
county's or city's annual refund claim, and the request has been 
approved by the Secretary. An approved request becomes 
effective on the date set by the Secretary and applies to sales and 
use taxes paid on or after the effective date. 

(c) Other Facilities. _ Hospitals and other medical facilities 
not covered by Paragraphs (a) and (b) of this Rule are not 
eligible for sales and use tax refunds. 

Authority G.S. 105-104.14: 105-262: 105-264. 

SECTION .1900 - TIRE RECAPPERS AND 
RETREADERS: TIRE AND TUBE REPAIRS 

.1902 SECONDHAND TIRES 

Sales to users or consumers of secondhand tires that have been 
recapped or retreaded are subject to sales or use tax on the full 
sales price without any deduction whatever on account of any 
trade-in credit or allowance. Sales to users or consumers of 
unrecapped or unretreaded secondhand tires are also subject to 
sales or use t ax unless such t ires qualify as exemp t trade-ins. tax. 

Authority G.S. 105-164.4: 105-164.6: 105-262. 

SECTION .2200 - FOOD AND FOOD PRODUCTS FOR 
HUMAN CONSUMPTION 

.2213 SERVICE CHARGE 

If any personnel other t han t hose direc t ly involved in t he 



service of food, bever.: 



;rvice or rood. Beverages or meals snare in a se r v ic e cha r ge o r 
gra t ui t y, then t he t o t al am o un t th e r eof i s subjec t to t ax. If t he 
service charge or g r a t ui t y is i n excess of 1 5 percent of t he sales 
price, and 1 5 p e rc en t is given t o t he personnel directly involved 
in t he se r vice of food, beve r ages o i meals, so much of t he 
se r vice charge as does no t exceed 15 percen t of t he sales pr ice 
is exemp t from sales t ax when t he o t her condi t ions of G.S. 
105- 164. 13 A a r e me t and t ha t amoun t of the s e rvice charge oi 



service charge does not exceed 209( of the sales price and 
personnel who are not directly involved in the service of food. 
beverages, or meals receive part of the service charge, then none 
of the service charge is exempt. If a service charge exceeds 2i.V/c 
of the sales price and personnel who are directly involved in the 
service of food, beverages, or meals receive an amount equal to 
20Vc ot' the sales price, the amount received by them is exempt 
if the service charge is separately stated as required by G.S. 105- 
164. 1 3 A. In this circumstance, if the personnel who are directly 
involved do not receive an amount equal to 20'7c of the service 
charge, then none of the charge js exempt. The amount of a 
service charge that exceeds 20'7c of the sales price is subject to 
tax. 

Authorm-G.S. 105-164.4: 105-164.6: 105-164.J3A: 105-262. 

SECTION .2400 - VETERINARIANS 



.2401 SALES OF MEDICAL SUPPLIES AND 
EQUIPMENT TO VETERINARIANS 

fal — Vete r ina r ians a r e en gaged in r ende r ing pr ofess i o n al 
se r vices and are the users o r consumers of medicines o r drugs 
and o t he r tangible p e r sonal pr o p e i ty which they purchase for use 



Pu r c h ases — by 



m — aamimstering — t r eatment — to — an mia is. 
veterinarians of medicines or d r ugs fo r use i n the t r eatment of 
pets, such as bi r ds, dogs a n d cats, a re sub j ect to the fou r pe r cent 
state — tax — and — arty — a pp licable — local — sa les — or — use — tax 
notwithstanding such medicines and drugs may be of the ty p e 
usually sold on the p r esc rip tion of a vete rin a r ian. Vete r ina r ians 
shall remit the tax due on such p u r chases to the ir su pp l i e r s w ho 
nd remit No i th Ca r olina sales and use taxes. When such 



lade f r om out-of-state su pp lie r s who do not 



p u r chases a r e mi\ 

collec t and remi t t he applicable s al es or use t ax. t he ve t e r inarians 



shall I 



remi t t he use t ax due t hereon directly t o t he Nor t h Carolina 
De p artmen t of Revenue. Purchases and sales by ve t erinarians of 



medr 



j i cines a n d d r ugs fo r use in t he t rea t men t of animals, 
including ca tt le, ho r ses, mules, sheep, chickens, t u r keys and 



o t her domes t ic animals 



■lally found on a farm, and o t he r 



:r domes t ic animals usuj 
animals o r poul t iT held or produced for comme r cial purposes are 
exemp t f r om sales or use t ax. 

(b) Ve t e r inarians who make purchases of medicines or drugs 
for use in t he treatment of animals and p e t s , and b y reason of t he 



mul t ip l e uses t o be made o t t he medicines or drugs canno t 
de t e r mine t he a pp lica t ion of t ax thereto until t hey are used may. 
in connection wi t h such purchases, furnish Ve t erinarian's 
Ce it if icaie. Form F-567. t o th ei r vendo r s and assume liabili t y fo r 
paymen t of t he applicable t ax t o t he Secre t aiT of Revenue on 
t ha t por ti on w h ich is used in t he t rea t ment of pets. Ve t erinarian s 
m ak i ng p u r c h ases p u r suan t t o a Ve t e r inarian's Certif i cat e . Fuim 
C-567. shall r egis t er w ith t he De p ar t me nt for the pur p ose of 
r emi tt ing t h e use t a x d u e on t hat port i on of such med i cines and 
drugs used in t rea t ing pe t s. The certificate shall be prepared in 



1445 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



du p licate and co p ies retained b y th e veterinarian and the vendor 
as a pan of thei r p ennanenl r eco r ds. Vendors that do not choose 



vete r ina r ian's tele p hone ( oral) p r escrip ti on a r e exem p t from sales 
or u s e t ax pr ov i ded the p r escription is reduced to w r it i ng, signed 



Certificate. Form C-5f i 7. shall maintain by the p ha r mac i st and filed in the same manner . 



to use the Vete ri na r ian's 

othe r ev i dence in w r iting adequate to support the conclusion that 



as an original 
w r itte n pr esc r i p t i on. Medicines o r drugs sold pursuant to th e 



ch sales a r e exem p t from tax in accordance with the p r ovisions r efilling of a veterina r ian's p r escription are likewise exem p t f r om 

G.S. 105-164.13(2). tax. Vendors making sales of med i c i nes or d r ugs pursuant to a 

(c ) Sales to veterinarians of med ic al supplies, inc l ud in g such veter i na r ian's prescri p tion or refilling the same must keep sales 

■ ms as cotton, gauze, adhes i ve ta p e, bandages and othe r records which will clearly seg r egate such pr esc r iption sales. All 



dressings and med i cal inst r uments and equipment, such as original prescriptions must be filed and ke p t available for 
knives, n eedles, scissors, mic r os c o p es, x-ray machines and other ins p ection b y the Sec r eta r y of Revenue o r he r autho ri zed agent- 



labo r atory equipment used for testing and diagnosis, and fo r the 
p r evention, t r eatment or cure of diseases in animals are subject 
to the fou r p e r cent state tax and any ap p li c abl e local sales or use 
tax. 

A 



(d) Veterinarians who maintain an invento r y for the pu rp ose 
of making sales of medicines, drugs, ilea powde r , soap, p et food, 
dog collars and similar items at retail must r egiste r with the 
De p artment and collect and r emit the a p plicable tax on such 



veterinarian is a physician. Therefore, sales to a sales. — A veterinarian who uses tangible p e r sonal p ro p e r ty in 



veterinarian of medical instruments, laboratory equipment, 
medical supplies, and medical equipment used to diagnose, 
prevent, treat, or cure disease are subject to applicable State and 
local sales or use tax. Rule 17 NCAC 7B .1404 lists medical 
items that are subject to tax. 

Aiithorin G.S. 105-164.4: 105-164.6: 105-262. 



.2402 SALES BY VETERINARIANS 

(a) Sales of drugs and medicines on the w r itten prescription 
of a veterinarian, whethe r f r om an inventory of med i c i nes and 
d rugs maintained by the veteri n a r ian o r whethe r by o r th r ough an 
ir 

use tax 
medii 



r ende r ing p r ofessional services and also makes sales of the same 
ty p e p r o p erty may. i n connection with such pu r chases, fu r nish 
Ce r t i ficates of Resale. Fo r m IZ-590. to his vendors. — The 
vete r ina r ian is then liable fo r r emitting the ap p licable use tax on 
the prope r ty which is used and the ap p licable sales tax on sales 
of such pro p erty to use r s o r consumers. 

Sales by veterinarians are subject to sales or use tax unless a 
specific exemption applies to the sale. A veterinarian who 
makes taxable retail sales must reuister with the Department and 
file sales and use tax returns. A veterinarian who is registered 
with the Department may obtain a Cenificate of Resale. Fonn E- 
590. The certificate can be used to purchase, without payment 
nde p endent pharmacy o r d r ug sto r e, a r e exem p t f r om s a les o r of tax, items the veterinarian is purchasing for resale. If a 
The terms "med i cines" 



licines in the gene r ally acce pt ed sense of the term and also 
includes remedies and tonics fo r internal use. vaccines, vitamins. 



and "drugs" shall mean veterinarian uses an item, such as flea powder, soap, or pet food. 

in providing professional services and also sells the same type of 

item, the veterinarian mav not know when purchasing the itein 

ointments, liniments, antiseptics and other medicinal substances whether the veterinarian will use the item or sell it. For items of 

this type, the veterinarian may use the Certifica te of Resale to 
purchase the item without payment of tax. The veterinarian js 
then liable for remitting the applicable use tax, if the veterinarian 
uses the item, or the applicable sales tax, if the veterinarian sells 
the item. 



aicmai s 
having preventive and cu r ative pr operties in the p r evention 



treatment or cure of disease in animals. 

(b) When a veterina r ian maintains an invento r y of medicines 
and drugs from which sales a r e made pursuant to a veterinarian's 

w r itten prescription, to persons who actually receive the 

medicines or drugs fo r subsequent administ r ation, such sales are 

exemp t from sales or use t ax provided adequa t e records are Authority G.S. 105-164.4: 105-164.6: 105-262. 

main t ained which clea r ly seg r egate such prescrip t ion sales. In 



t he absence of a wri tt en prescription, a copy of which is ke pt on 
file, vete r ina r ians making such presc r ip t ion sales mus t clea r ly 
show on t he patients' medical records, cards or charts the 
diagnosis of the illness o r ailment, t he kind and amount of 
medicines or drugs prescribed, the sales pr ice of such medicines 
or drugs and t he frequency with which such medicines or d r ugs 
are t o be administered t o t he patien t . — Records must be 
main t ained tha t show charges t o cus t omers for professional 
services and such records must be kep t in a man n e r so t ha t such 
prescrip t ion sales of medicines and drugs can be re l a t ed or 



traced t o t he p a t ien t s' medical records, cards or charts. — The 
foregoing does no t apply to medicines or drugs t ha t are 
adminis t ered by t he veterinarian t o t he patien t in connec t ion with 
t he t r eatmen t of pa t ien t s since ve t erinarians are the users of any 
such medicines or d r ugs so administe r ed. 



trt- 



1 t he written 



K ) Sales of medicines o r drugs by a p harmacy on i 
prescrip t ion of a veterinarian are exempt from sa l es o r use t ax. 
Sa l es of medicines and drugs by a pharmacy pursuan t t o a 



SECTION .2800 - FLORISTS: NURSERYMEN: 
GREENHOUSE OPERATORS AND FARMERS 

.2801 FLORISTS: NURSERYMEN: GREENHOUSE 
OPERATORS AND FARMERS 

(a) Retail sales of wreaths, bouquets and similar items are 
subject to the four percent state and any applicable local sales or 
use tax. 

(b) Retail sales of flowers, potted plants, shrubbery and 
similar nursery stock and retail sales of fruits, vegetables and 
other farm products are subject to the four percent state and any 
applicable local sales or use tax unless the product in question is 
a product of the fami and is sold in its original state by the 
producer of the product who is not primarily a retail merchant at 
the location where the product is sold. 

(c) For the purpose of the exemption afforded by G.S. 105- 
164.13(4b), nurserymen and greenhouse operators are 
considered to be famiers. Nursery stock which is not sold 



14:16 



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February 15, 2000 



1446 



PROPOSED RULES 



during the season in which it was purchased by the nurserymen, 
greenhouse operators and other farmers but is retained until the 
next season and growth is added thereto by virtue of such 
retention is considered to be a product of the farm and is exempt 
from sales and use taxes when sold by such nurserymen, 
greenhouse operators or farmers who are not selling primarily as 
retail merchants. 

(d) Nurserymen, greenhouse operators and other types of 
farmers that make retail sales of farm products that they have 
produced which are in their original state are not liable for 
collecting and remitting sales tax on these sales unless they are 
selling primarily in their capacity as retail merchants. Such 
vendors are selling primarily as producers when the total dollar 
sales volume of their produced fanii products in the original state 
regularly exceeds fifty percent of the total dollar sales volume of 
their purchased products and their produced products. Such 
vendors are selling primarily in their capacity as retail merchants 
when their total dollar sales volume of purchased products 
regularly exceeds fifty percent of the total dollar sales volume of 
their purchased and produced products. Such classification shall 
remain in effect until either category of sales on a regular basis 
has changed to another principal type. If such producer- vendors 
operate more than one location, the preceding is applicable to the 
total dollar sales volume of each location separately. The total 
dollar sales volume to be used in determining the classification 
of "producer" or "retail merchant" shall include all sales of 
tangible personal property without regard to any items or sales 
that might otherwise be exempt from tax by the Sales and Use 
Tax Statutes. 

(e) If such vendors are not classified primarily as retail 
merchants on the basis of the total dollar sales volume, sales of 
their produced products in the original state are exempt from tax; 
however, retail sales of any farm products or any other taxable 
merchandise acquired by purchase are subject to any applicable 
tax. If such vendors are classified primarily as retail merchants 
on the basis of the total dollar sales volume, they shall be liable 
for tax accordingly: i.e.. all retail sales of both types of products 
shall be subject to the tax unless specific sales are statutorily 
exempt from tax. 

(fl When vendors who are not primarily retail merchants 
make sales of fann products produced by them and products 
acquired by purchase, separate records must be maintained of 
sales of products produced by them. Records of purchased 
products, as well as sales thereof, must be kept and maintained 
in a manner that can be accurately and conveniently checked by 
the agents of the Secretary of Revenue; otherwise, all sales are 
subject to the tax. 

(g) Producers making taxable sales must register with the 
Department of Revenue for the purpose of collecting and 
remitting the tax due thereon. 

(h) When nurserymen, greenhouse operators, florists or other 
persons make taxable sales of shrubbery, young trees or similar 
items, and as a part of the transaction transplant them to the land 
of the purchaser for a lump sum or a flat rate, the entire amount 
of the transaction is subject to the four percent state and any 
applicable local sales or use tax unless such vendors segregate 
on the invoice that portion of the charge which is for the 
property sold and that portion of the charge which is for 



transplanting. 

(i) For the purpose of the exemption afforded by G.S. 105- 
164. 13(4b). nurserymen and greenhouse operators are 
considered to be farmers; therefore, the fact that they may be 
selling tangible personal property primarily as a retailer and not 
as a producer does not preclude certain of their purchases of 
tangible personal property for use from the one percent state rate 
of tax with a maximum tax of eighty dollars ($80.00) per article 
levied pursuant to G.S. 105-164.4(a>( ld)a. 105-164.4A(1). 17 
NCAC 7B .1 101 provides additional information regarding the 
above levy. 

AiithorirxG.S. 105-164.4; 105-1 b4.4A: 105-lb4.6: 105-164.13: 
105-262. 

SECTION .2900 - VENDING MACHINES 

.2901 SALES THROUGH VENDING MACHINES 

If a person ope r ates a numbe r of vend i ng machines from 
which taxab le sales a r e made at va r ious locations in this stale. 



ipai 



one retailer's license may be held by such p e r son a t his prm c ip 
place of busi ne ss and the tax may be accounted fo r in one return 
r etlecting the total gross rece ip ts de ri ved from sa l es th r ough all 
v ending machines ope r ated in this state. 

(a) Requirement. -_^ A person who sells tangible personal 
property through a vending machine must register with the 
Department and remit sales tax on the sales price of the property 
sold, unless the sale is exempt from tax. The sale of an item in 
a vending machine for one cent is exempt from tax. 

(b) Sales Price. ;; The "sales price" of an item sold in a 
vending machine differs depending on the item. For closed- 
container soft drinks and tobacco products sold through vending 
machines, the sales price is WiWc of the price at which the item 
is sold in the vending machine. For all other items, the sales 
price is 5()'/c of the price at which the item is sold in the vending 
machine. A vending machine retailer may calculate receipts 
from items sold, separate the receipts from items that are taxable 
at 1 00% of their price from those that are taxable at 50% of their 
price, and then divide the receipts bv the appropriate number to 
determine the amount of sales tax due. The appropriate number 
for sales not subject to the Mecklenburg Public Transportation 
'/29(- tax is 106% ( 100% plus the combined State 4% rate and 
general local 2% rate). The appropnate number for sales subject 
to the additional Mecklenburg tax is 106.5%. 

(c) Soft Drink Defined. \ soft drink is anv nonalcoholic 
beverage, whether carbonated or not, except the following: 

( 1 ) Drinks that contain at least .3 5% natural liquid milk. 

(2) Drinks that contain 100% natural fruit or vegetable 
juice without added ingredients of any kind other than 
vitamins, minerals, or ingredients extracted from an 
item and later returned to the item during the 
manufacturing process. 



ill 
i4) 
ill 



Coffee. 

Tea. 

Natural water. 



Ai(thont\G.S. 105-164.3: 105-164.4: 105-164.13: 105-262. 



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14:16 



PROPOSED RULES 



.2903 EXCLUSION OF TAX FROM RECEIPTS 

Vending machi n e ope r ators are p ermitted to sepa r a t e thei r 
r eceipts which a r e !()() p e r cent taxable f r om their recei p ts which 
are 50 p ercent taxable and. after calculating the taxable amou n ts 



AiahontyG.S. 105-164.4: 105-164.6: 105-262. 

.3009 TRANSFER OF REPOSSESSED ITEMS TO 
NEW BUSINESS 



of each, may div i de those total taxable amounts by 106 p e r cent 
to a r rive at taxa b le sales re p o r table on thei r sales and use tax 
r eturns. Reco r ds must be ke p t to su pp o r t such sales as pr ovided 
byG.S. 105-164.22 and G.S. 105-164.24. 

Authority G.S. 105-164.4: 105-262. 

SECTION .3000 - ARTICLES TAKEN IN TRADE: 

TRADE-INS: REPOSSESSIONS: RETURNED 

MERCHANDISE: USED OR SECONDHAND 

MERCHANDISE 

.3001 TRADE-INS 

Sales or use tax must be computed and paid on the full gross 
sales price of a new article without any deduction for any 
trade-in credit or allowance. The sale of a used article by the 
vendor who accepted sa m e it in trade as a credit or part payment 
on the sale of a new article will be exem p t from sa l es o r u se tax 
pr ovided tax was p aid on the g r oss sales pr ice of the new anicle. 
is also subject to tax at the gross sales price. 

Authofity G.S. 105-164.4: 105-164.13: 105-262. 

.3004 SECONDHAND PROPERTY 

Retail sales of used o r secondhand tangible p e r sonal pr o p erty 
which the vendo r acqui r ed by p urchase, o r by any means other 
than by t r ade-in o r r e p ossession a r e subject to the four p ercent 
state tax and any applicable local sales or use tax. — In cases 

whe r e a vendo r reacquires property that is collateral fo r a Authotity G.S. 105-164.4: 105-164.6: 105-262 
nonrecou r se — endorsement — bv — the — verrdor — to — a — financin g 



(a) When a proprietorship o r partne r ship is succeeded by a 
co rp o r at i on and the merchandise invento r y i s sold or transfe rr ed 
to the corporat i on for resale, tax is not due on such t r ansactions. 
The co ip o r ation will be lia b le for collect i ng and r emitting the 
fou r p ercent state tax and any a pp licable local sa l es o r use tax on 
its retail sales of tangible personal p r o p eny acqui r ed f r om the 
pro pr ieto r shi p o r p a r tne r shi p , including a i i\ ' tangible p ersonal 
property which would have been exem p t from tax under the 
p rovisions of G.S. 105-164.1,1( 1 6 ) if sold by the pr op r ieto r ship 
o r p a r tnership as r epossess e d o r t r aded-in a r t i cles. 

(b) When corpo r ations me r ge p u r suant to the provisions of 
G.S. 55-1 1-01 and the merchand i se i nventory is transfer r ed from 
the pr edec es so r co rp o r ation to a su r\' iving cor p oration fo r r esale, 
the tax is n ot due on such t r ansactions. — Furthermo r e. G.S. 
55-1 1-01 o p erates so that the exemption from sales tax p r ovided 
by G.S. 105-164. 13( 16) and a pp licable to sales of re p ossessed 
a rtic l es o r sales of used a r ticles taken in trade b y a pr edece ssor 
co rp o r ation on the sales p r ice of new a r ticl e s i s applicable to the 
s a le of such r e p ossessed o r traded-in a r ticles when they are sold 
by the su r v i ving co r po r ation. 

A repossessed item that is in the inventory of a business and 
would be exempt under G.S. 105-164.13( 16) if sold by the 
business becomes taxable when the business dissolves and 
transfers its inventory to a successor business entity. This 
applies to all business refomiulations except a merger of two or 
more business entities in w hich the mventoi'v is transferred to the 
surviving business entity. 



institution, the vendor has actually re p u r chased the p r o p e r ty. In 
such case, it is not pr o p eny repossessed b y the vendo r and th e 



.3010 TRADE-INS ON EXEMPT SALES 

Sales o r use tax is due on the sales pr ice as defined in G.S. 



g r oss sales price of such propeny is sub j ect to the fou r p e r cent 105-I64.,^( 1 6 ). When a new a r ticle i s exempt f r o i ntax. the retail 



state tax and any a pp licable local sales o r use tax when sold at 
retail. — Used o r secondhand propeny accep t ed i n lieu of 
commissions is deem e d t o have been purchased. The original 
■s^rtRrk — in trade of t h e me r chan t is no t — limi t ed t o ne^ ' ly 
manu f ac t ured ar t icles: t herefore, t he fac t t ha t t angible p ersonal 
propeny is secondhand or used does no t exemp t sales of such 



propei t y from t he t ax. 

(a) Tax Status. — The original stock in trade of a retailer is not 
limited to newly manufactured anicles. Therefore, the fact that 
propen\ is used or secondhand does not exempt it from sales or 
use tax. Retail sales of secondhand propert\ acquired by an\ 
means other than repossession are subject to sales or use tax. 

(b) Purchases. _ When a vendor acquires propeny in any of 
the following circumstances, the property is considered to have 
been purchased and is therefore subject to lax: 

(1) The vendor reacuuires properts that is collateral for a 
nonrecourse endorsement given by the vendor to a 
financial institution. 

(2) The vendor accepts secondhand or other propeny in 
lieu of commissions. 



icie is exempt r r o i n tax. tne retail 
sale of the tang i ble pe r scinal pr o p e r ty taken in tr ade on such 
t ransac t ions is subjec t t o t he applicable s t ate and any applicabl e 
local sales or use t ax. 

Aiahonty G.S. 105-164.4: 105-164.5: 105-164.13: 105-262. 

.3013 USED PARTS FROM JUNKED PROPERTY 

Retail sales of used pans which that have been removed from 
junked tangible personal propert\'. including motor vehicles, by 
persons engaged in the business of selling such m erchandise the 
pans are subject to the applicable sales tax. When traded-in or 
repossessed anicles are dismantled and-rfie their pans t herefrom 
are sold at re t ail by such businesses, retail, the parts have lost 
their identity as t raded-in or repossessed articles and are subject 
to the lax. 

AuthonrxG.S. 105-164.4: 105-164.6: 105-262. 

SECTION .3200 - TELECOMMUNICATIONS AND 
TELEGRAPH COMPANIES 



J4:J6 



NORTH CAROLINA REGISTER 



Eebmary 15. 2000 



1448 



PROPOSED RULES 



.3204 CELLULAR TELEPHONE COMPANIES 

(a) 1%. $80 Maximum Rate on Purchases. — Those fi r ms 
k n own as cellular tele p hone com p anies, which are hcensed by 
th e Fede r al Communications Commission and which provide 
thei r custome r s, o n a comme r c i al basis. — acc e ss to local 
telecommunications — com p any — Vmtr, — to — make — artd — r ece i ve 
telephonic quality communicat i ons by use of r adio f r equencies 
come within the purview of G.S. 105-164.4(a)(ld)c and this 
R u le as they r elate to the one percent rate of tax on s p ecified 
equi p ment. Sales to such firms of microwave transmitte r s and 
r eceive r s, antennas, r adio channel units, and cent r al office 
telecommunications equi p ment, sw i tchboa r d o r p ri vate b r anch 
exchaniie equ i pment and pr ewntten computer p r og r ams used i n 
p roviding telecommunications services to subsc r ibe r s are subject 



Authonn G.S. 105-164.4: 105-164.4A; 105-164.6: 105-262: 
105-264. 



SECTION .4300 



REFUNDS TO INTERSTATE 
CARRIERS 



.4301 REFUNDS TO INTERSTATE CARRIERS 

(a) Scope. ;; This Rule sets out the requi r ements for 
application by an interstate ca rr ier, as defined in G.S. 105- 
164.14(a). fo r the refund allow ed by that statute, explains the 
sales and use tax refund allowed to interstate carriers under G.S. 
105-164. 14(a) The refund authorized by that statute does not 
apply to taxes listed in 1 7 NCAC 7B . 16()2(f). 1602(d). 

(b) Elieible Items. -- The following a r e items of tangible 



to the o n e p e r cent sales or use tax with a maximum tax of eighty p e r sonal pr o p e r ty which may be inc l uded in p u r chases on the 

application for refund. Fo r m G-581. filed by inte r state ca r riers: 
The followinu items are considered to be fuel, a lubricant, a 
repair part, or an accessory. Therefore, sales and use taxes paid 
on the purchase of one of these items is eliiiible for refund under 
G.S. 105- 164. 14(a): 

( 1 ) antennas; 

(2) antifreeze; 

(3) bedding for motor vehicle sleeping compartments; 

(4) charts for tachographs; 

( 5 ) decals for motor vehicles; 

(6) emergency flares and reflectors; 

(7) fire extinguishers; 

(8) freon or nitrogen used in refrigerating and cooling 
motor vehicles; 

(9) furniture pads: 

(10) lifeboats and oxygen masks; 

(11) load jacks and chains; 

(12) mobile CB radios: 

(13) motor vehicle seat cushions; 

(14) paints for decals; 

(15) polyethylene liners (used to waterproof trailers); 

(16) pouches for registration cards and permits; 

(17) radios; 

(18) ramp equipment (aircraft steps used to embark or 
disembark aircraft); 

(19) ropes and chains to tie down cargo (adapted for use 
on motor vehicles: otherwise not allowed;; 

(20) signs (metal signs attached to trucks); 

(21) tarpaulins; 

(22) tire chains; 

(23) tire and tubes: 

(24) welding rods for repair of motor vehicles: 

(25) windshield solvents: 

(26) zipped covers for grills. 
(c) Items not Eligible. - The following ar e purchases of i t ems 



dolla r s ($80 . 00) per single a r tic l e. Sales to s uch fi r ms of towe r s 
to support antennas used to, transmit and r eceive signals of 
mic ro wave r adios used i n providing su c h telephon i c qual it y 
communications a r e subject to the one p e r cent sales o r use tax 
with a maximum tax of eighty dollars ($80.00). Fo r the pu rp o se 
of a pp lying the maximum tax. a towe r i s conside r ed to be a 
single article only when the complete tower is sold by t he same 
ve n do r . Sales of ante nn a cable used i n t r a n s mi tti n g the rad i o 
signals — from — the — mic r owave — antenna — to — the — microwave 
t r ansmitter or r ece i ve r are subject to the one pe r cent r ate of tax. 
Tlie preferential one percent, maximum eighty dollars ($80.00) 
per article rate in G.S. 105-164.4A(3) applies to cellular 
telephone companies. Sales to these companies of the following 
items are subject to this preferential rate: 

( 1 ) Antennas. 

(2) Antenna cable used in transmitting the radio signals 
from the microwave antenna to the microwave 
transmitter or receiver. 

(3) Central office telecommunications equipment. 

(4) Microwave transmitters and receivers. 

(5) Prewritten computer programs used in providing 
telecommunications services to subscribers. 

(6) Radio channel units. 

(7) Switchboard or private branch exchange equipment. 

(8) Towers to support antennas used to transmit and 
receive signals of microwave radios used in providing 
telephonic duality communications. For the purpose 
of appKing the maximum tax, a tower is considered to 
he a single article only when the complete tower is 
sold by the same vendor. 

(b) Rates on Services and Sales. -- The gross recei pt s derived 
by a cellular t elephone company t i ' om p roviding in t ras t a t e local. 
t oll or priva t e t eleco m munica t ions serv i ces, including basic 



service charges, sys te m access charges and general usage 
cha r ges, a r e subjec t t o t he three p ercen t or six and one-half 



G.S. 



p ercen t sales t ax as provided by G.S. 105-164.4(a)(4a) or (4c). of t angible personal propei t y which shall no t be included in t he 

claim: The following items are not considered to be fuel, a 
lubricant, a repair part, or an accessory . Therefore, sales and use 
taxes paid on the purchase of one of these items is not eligible 
for refund under G.S. 105-164. 14(a): 

( 1 ) _ drivers' gloves; 

(2) drivers' uniforms: 

( 3 ) food trays (airplanes ): 



. ' Idea By u.^. it)r i -i04.4 ( a 

105-I64.4(a)(4a) and (4c) set the tax rates on local 

telecommunications service and intrastate toll and private 
telecommunications service. Telecommunications service 
includes basic service charges, system access charges, and 
general usage charges. Sales or leases of radio telephone 
equipment to subscribers are subject to the four percent state and 
any applicable local sales or use taxes. 



1449 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



(4) fork lift tires and parts: 

(5) gauges for testing equipment: 

(6) hand trucks: 

(7) license and inspection fees: 

(8) pallets: 

(9) pillows (airplanes): 

(10) repair labor: 

(11) road service charges; 

(12) security seals: 

(13) sixty percent on recapped tires where fort\ percent of 
the combined price is taxed (17 NCAC 7B .1901 ): 

(14) tire volume discounts: 

(15) tools, shop supplies: 

( 16) trip logs: 

(17) wax and washing supplies. 

(d) Other Items. - The lists in this Rule are not intended to be 
e xclus i ve, but a r e fo r illust r at i ve p u rp oses only. If there is any 



o p eration of motor vehicles, r ailroad cars, locomot i ves and 
ai rp lanes within and without t his state, the total number of miles 
of o p e r ation of moto r veh i cles, railr oad ca r s, locomotives and 
a irp lanes in this state, the total p u r chase pr ice of lu b ricants. 
r epa ir p a r ts and accesso ri es f or moto r vehicles, railroad cars. 
locomo t ives a n d airplanes and the total amount of No r th 
Ca r ol in a state and county sales and use tax p a i d on su c h 
pu r chases. Any sales or use tax paid to state o r local tax i ng 
autho r i t ies shall be excluded f r om total purchases as shown on 
the application fo r refund. — The amount of pu r chases of 



accesso r ies attached to moto r vehicles at the time of i 



r p u r chase on 

which the highway use tax was paid shall not be included in total 
p u r c h ases on the refund form. The ap p lication fo r refund form 
shall contain the pr ocedure p r escribed for computing the amount 
of the r efund and the mformation necessa r y to co m plete such 
a pp lication. Records, upon which the a pp lication fo r r efund is 
bas e d, shall be mainta in ed in such manne r as to enable a 



question as t o whethe r o r not any item which does not ap p ear r e pre sentative of the De p a r tm e nt of Revenue to accu r ately and 
the r ein should be included in total p u r c h ases on the application conveniently ve r ify th e c o rre ctness of the a pp licant's statements. 
fo r refund, a r uling on such i tems may be obtained f r om the The a pp lication fo r r efund shall be completed in triplicate and 
Sales and Use Tax Division, do not include every item that is or 
is not subject to refund. Upon request, the Sales and Use Tax 
Division will detennine if an item not included in either list is 



two co p ies returned to the North Carolina Depaiiment of 
Reve n ue. Office Examination Division. Raleigh. North Caroli n a, 



ithin the time 



subject to refund. 



witnin tne tnne p r escribed he r ein. Afte r a re pr esentat i ve of the 
De p a r tment has ve r if i ed the co rr ectness of the a pp l ic ation fo r 



( e ) Amount of Refund. 21 Tlie Secretary shall com p ute the refund, a vouche r fo r the amount due. if any. will be issued. 



( i ) Nothing in this Rul e shall be so const r ued as to r e li eve a ny 
t ax p aye r of liabil i ty for r emitting sales o r use tax on taxable 



No r th Ca r ol in a s ales or use tax which would be due with respect 

to all lub r icants, re p a ir pa r ts and accessories acqui r ed during th e 

r efund p eriod as though all such pu r chases were made in this pu r chases of lub r icants, re p ai r p arts and accesso r ies for moto r 

state but only on such pr o p ortion of th e t o tal p urchase p r ices vehicles, railroad cars, locomotives and aiiplanes. 

the r eof as the total num b e r of miles of o p e r ation of suc h 

applicant's moto r ve h icles, ra il r oad ca r s, locomot i ves an d 



air p lar 



ith i n t his st a te bea r s to t h e total num ber of miles of 



u 'p ianes witnm ti ns st a te P ea r s to t h e total nur 
o p e r a t ion of such a ppl icant's moto r vehicles, r ai lr oad c ar s. 



locomoti 



tives and ai rp lanes within and without this state, and such 
a m ount of sales and use tax as the a pp licant has p aid in this state 



Authonrx G.S. 105 164.14: 105-262. 

.4303 APPLICATION 

(a) Pe r sons, fi r ms o r co rp o r ations who are qualified unde r 
G.S. I()5-I64.14(a) to r eceiv e a r efund of North Ca r olina state 



du r ing said r efund p e r iod in excess of the amount so com p uted and county s al es o r use tax p aid by them on p u r chases or 

shall be r efund e d to the a pp licant. G.S. 105- 164. 1 4(a) sets out acquis it ions of lub r icants, r e p ai r p arts o r accesso r ies i n this state 

the formula for computine the amount of a refund. Under the fo r moto r vehicles, r ail r oad ca r s, locomotives and aiiplanes 
formula, an interstate carrier receives a refund for a percentage 



opera t ed by such taxpayer shall i nclude in a curren t quarterly 

refund claim onh ' lubrican t s, repa i r parts or accessories acquired 

(f) The Secre t ai"y shall compute the co u n t y sales o r u se t ax and t he t ax paid t hereon during t he quarter covered by t he claim. 



of the tax paid on eligible items. 



;cre i a i "y snail compute t ne coun t y s, 
which would be due wi t h respec t t o all lubrica nt s, r e p air parts 



reon aurmg t ne quarter cc 
If a taxpayer includes in a curren t quar t erly refund claim a n y 



and accessories acquired during t he refu n d p e r iod in t he sa m e lub r ican t s, repair parts or accessor i es acquired or t he t ax p aid 

thereon during a noncu r ren t quarter, same will be disallowed. 



manner as the s t a t e sales and use t ax se t out m Paragra p h (e) of 
t his Rule. 

(g) Ap p lica ti on for refund forms sha l l be f u r nished by t he 
Sec r e t a r y of Revenue and shall be signed by a duly au t horized 
person and no t arized. Claims shall b e filed quarterly wi t hin 60 
days from t he close of each quarter ending in March. June- 
Se pt ember and Decembei ' of e ach year covering t he purchases or 
acquisi t ions during t he preceding quarter of lubricants, repair 
part^ — and — accessories — for — motor vehicles. — railroad — cars: 
loco m otives and airplanes. Any claim not filed du r ing t he period 
specified above shall no t be allowed unless an ex t ension of t ime 
has been gra nt ed, in which case t he claim shall be f i led du ri ng 
t he ex t ended period. 

(h ) The app l ica t ion foi ' r efund shall show, in addition t o all 
other required informa t ion, th e t otal number of miles of 



(b) Any t axpayer qualified t o receive refunds au t ho r ized by 
G.S. 105- 164. 14(a) who pays sales or use t ax t o a supplie r o r use 
tax direc t ly t o t he Secre t ary of Revenue as a resul t of an 
assessment made by t he Secretary ' on sales or p u r c ha s e s of 



lubr i can t s. 



nt 



ir i can t s. repair parts or accessories made du r ing a noncurre 
quarter may apply for a r efund of such t a x es u n der G.S. 
I06-I64.14(a) by filing an amended claim for refund of taxes 
w i thin t he time and in t he manne r pr esc ri bed b\ ' G.S. 105-266.1 
fo r eac h quarter du rin g wh i ch such pu r chases were made. The 
a m e n ded claim must show the information required by 17 
NCAC 7D .4301. including t he number of miles of o p e r a ti on 
wi t hin and wi t hout this s t a t e of moto r vehicles, r ail r oad cars, 
locomotives and airplanes during each qua rt e r : th e total purchase 
price of l ubricants, repair pa rt s or accessories for mo t or vehicles. 



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February 15, 2000 



1450 



PROPOSED RULES 



ra il r oad cars, locomotives and air p lanes pu r chased during each 
quarte r : a n d the total amoun t of Noith C a r o lin a state and local 
sales and/o r use taxes paid on such pu r chases du r ing each 
quarter, including any tax p aid the r eon to vendo r s o r d ir ectl y to 
the Sec r etary of Revenue as the result of the assessments 
r efe rr ed to in this Ru l e. Records must be maintained in such 
manne r as to enable a rep r esen t ative of the Secretary of Revenue 
to accu r ately verify such claim. 

An interstate carrier must file Fomi E-581 to obtain a refund 
underG.S. 1U5-164. 14(a). A refund period is a calendar quarter. 
A claim for refund covers sales and use taxes paid during a 



Fitzgerald at the North Carolina Department of Revenue, Motor 
Fuel Tax Division. PO Box 25000, Raleigh, NC 27602. 



Fiscal Note: 






State Local 


Sub 


None 



quarter. A claim for refund is due within 60 days after the end 
ot a quarter. The Department cannot accept a claim for refund 
filed later than 3 years after its due date. A claim for refund can 
include only taxes paid for the calendar covered by the claim. 
An amended claim for refund can be filed to correct an 
understatement of a refund claimed for a prior quarter. An 
amended claim for refund must be filed to correct an 
overstatement of a refund made for a prior quarter. 

Authority G.S. 105-164.14: 105-262. 



Notice is hereby given that the North Carolina Department 
of Revenue intends to amend the rules cited as 17 NCAC 91 
.0302: 9K .0602. and repeal the rule cited as 17 NCAC 9L 
.0403. 

Editor's Note: G.S. 150B-l(d)(4) exempts the Department of 
Revenue from Part 2 Article 2A of Chapter 150N with respect to 
the notice and hearing requirements. The Department will 
however publish the text of proposed rules in the North Carolina 
Register prior to the scheduled time of review by the Rules 
Review Commission. 

Proposed Effective Date: .lulv I, 2000 

Instructions on How to Demand a Public Hearing: Contact 
Mr. Julian Fitzgerald at (919) 733-8200 to discuss the proposed 
changes. If a hearing is desired, submit a written request for a 
hearing to Mr. Julian Fitzgerald at the North Carolina 
Department of Revenue, Motor Fuel Tax Division, PO Box 
25000. Raleigh, NC 27602. 

Reason for Proposed Action: 

17 NCAC 91 .0302 - S.L. 98-1367 amended G.S. 105-449.39 to 
delete the option of carrying fonvard a credit to a subsequent 
period. The change to this Rule reflects this legislative change. 
17NCAC 9K .0602 - The record-keeping requirement for bulk- 
end users needs to he clarified. Records of all withdrawals from 
storage arc not needed. The change specifies when a record of 
a withdrawal from storage is needed. 

17 NCAC 9L .0403 - This Rule is obsolete and needs to be 
repealed. 

Comment Procedures: .Submit written comments to Mr. Julian 



CHAPTER 9 MOTOR FUELS TAXES 

SUBCHAPTER 91 - HIGHWAY FUEL USE TAX 

SECTION .0300 - CREDITS AND REFUNDS 

.0302 REFUNDS 

tvrt The Secretary may make refunds without prior audit or 
without having been furnished bond if the motor carrier has 
complied with the pr ov i sions of Subchapte r V of G.S. 105 and 
the rules ado p ted thereunde r motor fuel tax laws and rules for a 
period of one full prior registration year. 

(b) Beginning with the first quarte r of 1990. a moto r ca rr ie r 
may r equest a r efund when its c r edit fo r Nonh Ca r olina tax paid 
fuel purchases fo r its subje c t v ehic les ex c eeds its liability fo r 
fuel used i n No r th Carolina by such vehicles. The motor ca rr ier 
may request a r efund fo r the e xce ss b y c h ecking the designa t ed 
block on the qua r terly o r annual highway fuel use tax re p ort 
form: 

(c) A moto r ca rr ie r may also r equest r efund fo r any of the 
eight pr eced i ng quarters on which its c r edit exceeds i ts liability 
in North Ca r olina and on wMiich it has not been pr ev i ously 
r efunded for such excess, o r it has not used s uc h excess as a 
c r ed i t fo r sub s equent quarters on which it had incu rr ed a net 
liability exce p t thai any r efund fo r ex c ess purchases p rior the 
fir st qua r te r of 1990 must be ap p lied fo r on Fomi Gas. 1280 
within 1 80 days f r om the end of the qua r ter fo r which the refund 
is r equested. 

Authorm- G.S. 105-262: 105-449.39: 105-449.40. 

SUBCHAPTER 9K - GASOLINE, DIESEL AND 
BLENDS 

SECTION .0600 - ENFORCEMENT AND 
ADMINISTRATION 

.0602 RECORD-KEEPING REQUIREMENTS OF 

BULK-END USERS. RETAILERS. AND USERS 

To enable the Secretary or a person designated by the 
Secretary to prepare audits, bulk-end users, retailers retailers. 
and users of motor fuels must maintain the followinu records for 
a period of three years, records as follows : years: 
( 1 ) Users: 

(a) All fuel receipts, highway and non-tax-paid: 

(b) Quarterly odometer readings, regardless of 
weight classification: 

(c ) Purchase and disposition dates of fleet vehicles: 
. (d) List of current vehicles by registered gross 

weiizht. 



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PROPOSED RULES 



(b) 

(c) 

(d) 
(e) 



(2) Bulk-End Users: 
(a) All fuel receipts, highway and non-tax-paid; 

Withdrawal statements of highway fuel from 

non-tax-paid bulk storage facilities: 

Quarterly odometer readings, regardless of 

weight classification: 

Purchase and disposition dates of fleet vehicles: 

List of current vehicles by registered gross 

weight. 

(3) Retailers: 

(a) All fuel receipts and bills of lading: 

(b) Meter readings; 

(c) Fuel availability schedules; 

(d) Intrastate mileage records. 

Authority G.S. 105-262: 105-449.121. 

SUBCHAPTER 9L - ALTERNATIVE FUEL 

SECTION .0400 - PAYMENT AND REPORTING 

.0403 REPORTING SALES AND DELIVERIES: 
PROPANE GAS SUPPLIERS 

Non-highway sales of p r o p ane gas to use r s and bu l k-end users 
shall be listed se p a r ately by customer on the monthly Altema t i v e 
Fuel P r ovide r 's Re p ort if the use r s and bulk-end use r s have a 
moto r veh i cle pr o p elled by p r opane gas. 

.Authority- G.S. 105-262: 105-449.137. 



changes. 

17 NCAC 10 .0504 - The changes to the rule update references 

to courses and course requirements. 

17 NCAC 10 .0505 - The changes to tlie rule update references 

to courses and correct an error on the course total addition. 

Comment Procedures: .Sulvnit written comments to Mr. John 
C. Bailey at the North Carolina Department of Revenue. PO Bo.\ 
871 . Raleigh, NC 27602. 



Fiscal Note: 






State Local 


Sub 


None 



CHAPTER 10 PROPERTY TAX 
SECTION .0100 - ORGANIZATION OF DIVISION 

.0101 LOCATION 

The ad valorem tax d i vision is located in the No r th Ca r olina 
De p a r tment of Revenue Building at 501 No r th Wilm i ngto n 
Street in Raleigh. Nonh Carolina. The mailing a dd r ess is P.O. 
Box 25000. Raleigh. North Ca r olina 2764 . 

AuihoritxG.S. 105-271 to 105-395: 143B-10: 143B-221. 

SECTION .0400 - EXCLUSION FOR PERSONAL 

PROPERTY USED FOR COTTON DUST 

PREVENTION OR REDUCTION 



Notice is hereby given that the North Carolina Departnwnt 
of Revenue intends to amend the rules cited as 1 7 NCAC 10 
.0405, .0504-.0505. and repeat the rule cited as 17 NCAC 10 
.0101. 

Editor's Note: G.S. 150B-lid)(4) e.xetnpis the Department of 
Revenue from Part 2 Article 2A of Chapter 1508 with respect to 
the notice and hearing requirements. The Department will 
however publish the text of proposed rules in the North Carolina 
Register prior to the scheduled time of review by the Rules 
Review Commission. 

Proposed Effective Date: .luly 1.2000 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): Contact Mr.. John 
C . Bailey at 1919) 733-771 1 to discuss the proposed changes. 
If a hearing is desired, submit a written request for a hearing to 
Mr. .lohn C. Bailey at the North Carolina Departnwnt of 
Revenue, PO Bo.\ 25000. Raleigh. NC 27602. 

Reason for Proposed Action: 

17 NCAC 10 .0101 - This Rule is not needed 

1 7 NCAC 10 .0405 - This Rule incorrectly states that an annual 

application for exclusion is required. This is not the case. The 

change to the rule corrects this error and makes technical 



.0405 PROCEDURE FOR CLAIMING EXCLUSION 

(a) In order to receive the benefit of G.S. 105-275(8)c. the 
owner must annualK ' file an application for exemption with the 
county assessor of the county in which the property is situated 
as provided m G.S. 105-282.1. The application is to be filed 
during the regular listing period as provided in G.S. 105-307. 

(b) The application must contain a complete description of the 
property and shall reflect investment figures and pertinent 
information relative to its value. 

(c) The application shall also be accompanied by any other 
infomiation or documents required by the county assessor to 
deiennine the eligibility of the property for the exclusion, such 
as the following: 



(1) 
(2) 
(3) 
(4) 



general layout of the equipment or system: 
specifications of the equipment or system; 
function(s) of the equipment or system: 
construction schedule, if not completed, including the 
anticipated date of final completion: 
the names, addresses and telephone numbers of the 
individuals responsible for management, operation 
and maintenance of the equipment or system. 



Authontx G.S. 1 05-275(8 )c: 105-282.1: 105-307. 

SECTION .0500 - TRAINING/CERTIFICATION: 

COUNTY ASSESSORS: AD VALOREM 

TAX APPRAISALS 



14:16 



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February 15, 2000 



1452 



PROPOSED RULES 



.0504 CERTIFICATION REQUIREMENTS FOR 
COUNTY ASSESSORS 

(a) Except tor persons deemed to be qualified as county 
assessors under G.S. 105-294. every person serving as county 
assessor after July I. 1983. must, within two years after 
appointment, achieve a passing grade in the four courses listed 
in this Rule and then achieve a passing grade on a 
comprehensive examination administered by the Department of 
Revenue. Persons who do not meet these requirements are not 
eligible for reappointment. 

(b) The courses required for county assessors are as follows: 
The Fundamentals of Property Tax Listing and 
Assessing - Institute of Government; 
International Association of Assessing Officers 
(lAAO) Course + RH - The Fundamentals of Real 
Property Appraisal; 

Bus i n e ss Personal Property Appraisal and Assessment 
- Department of Revenue o r lAAO; Revenue; 
lAAO — Course — 4 — = Assessment Admin i st r ation. 



(1) 



(2) 



(3) 



(4) 



Administration Institute of Government. 



(c) The comprehensive examination for county assessors will 
consist of fitt multiple choice or true/false questions. It is 
designed to test the assessor's knowledge of the listing, appraisal 
and assessment requirements of the Machinery Act (G.S. 
105-271 et seq.) and the theories and procedures involved in the 
appraisal of real and personal property. A passing grade is 70 
percent correct or above. 

Authonty G.S. 105-289(d): 105-294(h)(c). 

.0505 CONTINUING EDUCATION REQUIREMENTS 
FOR COUNTY ASSESSORS 

(a) Every person who serves as county assessor must attend 
at least 30 hours of instruction in the appraisal or assessment of 
property during each two-year period to be eligible for 
reappointment. The following credit-hours will be allowed in 
fulfilling this requirement: 

( 1 ) Courses offered by the International Association of 
Assessing Officers (lA.'XO) 24 hours 

(2) Business Personal Property Appraisal and 
Assessment Course offered by the 
Department of Revenue 24 hours 

(3) The Fundamentals of Property Tax Listing and 
Assessing Course offered by the 

Institute of Government 24 hours 

(4) Other Appraisal Courses approved by the 
Department of Revenue 24 hours 

(5) I A AG. Institute of Government or Department of 
Revenue Workshops 14-21 hours 

(6) lAAO. Institute of Government or Department of 
Revenue Seminars 4- 1 2 hours 

(7) Fall Conference of North Carolina Association of 
Assessing Officers 

Opening Session 4 hours 

2nd day - Morning Session 3 hours 

2nd day - Afternoon Session 4 hours 

3rd day - Morning Session 3 hours 

Total 4 1 4 hours 



3 hours 
3 hours 
3 hours 
3 hours 
12 hours 
2 hours 



(8) Summer Conference of North Carolina Association 
of Assessing Officers and 

North Carolina Collectors Association 

Opening Session 

Afternoon Session 

2nd day - Morning Session 

2nd day - Afternoon Session 

Total 

(9) Regional County Assessors Meetings 
(b) Credit for workshops and seminars will depend on actual 

length of program, i.e.. one-half day seminars would be 4 hours; 
one day. 8 hours; and one and one-half days. 12 hours. 

Authonix G.S. 105-289ld): l05-294(di. 



TITLE 19A - DEPARTMENT OF TRANSPORTATION 

Notice is hereby given in accordance with G.S. 150B-21 .2 
rhaf the N.C. Department of Transportation - Division of 
Motor Veliicles intends to amend the rule cited as 19A NCAC 
OJD .OiSOl . Notice of Rule-making Proceedings was published 
in the Register on December 1 , 1999. 

Proposed Effective Date: August 1 . 2000 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 1? days (f notice).' A demand for a 
public hearing must be made in writing and mailed to Emily 
Lee. N.C. Department of Transportation, PO Box 25201. 
Raleigh, NC 2761 1 . The demand must he received within 15 
daxs of this Notice. 

Reason for Proposed Action: Federal regulation 49 C.F.R.. 
350 .9im} rcqinres North Carolina to "seek to implement into law 
and practice the recomtnended fine schedule published by the 
Commercial Vehicle Safety Alliance." In accordance with the 
federal regulation, the General Assembly passed S.L. 99-330 
which added G.S. 20-17.7 to allow the Commissioner of Motor 
Vehicles to adopt rules implementing fines for violation of oitt- 
of-service criteria. The effective date of Section 20-17.7 was 
December 1. 1999. The temporaiy rule became effective 
December 1. 1999. 

Comment Procedures: Any interested person may submit 
written comments on the proposed rule by mailing the comments 
to Emily Lee. N.C. DOT. PO Box 25201. Raleigh. NC 2761 1 hx 
March 16.2000. 



Fiscal Impact 
State Local Sub. 



None 



CHAPTER 3 - DIVISION OF MOTOR VEHICLES 
SUBCHAPTER 3D - ENFORCEMENT SECTION 



1453 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



SECTION .0800 - SAFETY RULES AND 
REGULATIONS 

.0801 SAFETY OF OPERATION AND EQUIPMENT 

(a) The rules and regulations adopted by the U.S. Department 
of Transportation relating to safety of operation and equipment 
(49 CFR Parts 390-398 390-397 and amendments thereto) shall 
apply to all for-hire motor carrier vehicles, whether common 
c arr ie r s, contract car r ie r s o r exempt carriers and all private motor 
carriers, while engaged in interstate commerce over the 
highways of the State of North Carolina. 

(b) The rules and regulations adopted by the U.S. Department 
of Transportation relating to safety of operation and equipment 
(49 CFR Parts 390-398 390-397 and amendments thereto) shall 
apply to all for-hire motor carrier vehicles, whether common 
car r iers, contract car r ie r s o r exempt ca rri e r s and all private 
motor carrier vehicles engaged in intrastate commerce over the 
highways of the State of North Carolina if such vehicles have a 
GVWR of greater than 26,000 pounds: are designed to transport 
16 or more passengers, including the driver: or transport 
hazardous materials required to be placarded pursuant to 49 CFR 
170 - 19 0. 170-185. Provided, the following exceptions shall also 
apply to all intrastate motor carriers: 

( 1 ) An intrastate motor carrier driver may not drive more than 
1 2 hours following eight consecutive hours off duty: or 
for any period after having been on duty 16 hours 
following eight consecutive hours off duty: or after 
having been on duty 70 hours in seven consecutive days: 
or more than 80 hours in eight consecutive days. An 
intrastate driver will be detemiined by his previous seven 
days of operation. 

(2) Persons who otherwise qualify medically to operate a 
commercial motor vehicle within the State of North 
Carolina will be exempt from the provisions of Part 
391.1 1(b)(1) and mav be exempt trom provisions of Part 
391.41(b)( I ) through ( 1 1 ) where applicable and therefore 
will be authorized for intrastate operation if approved by 
an Exemption Review Officer appointed by the 
Commissioner of Motor Vehicles. These drivers shall 
continue to be exempt upon completion of a biennial 
medical examination indicating the condition has not 
worsened or no new disqualifying conditions have been 
diagnosed and upon continued approval of an Exemption 
Review Officer. 

(cl The rules and regulations adopted by the U. S. Department 
of Transportation relating to inspection, repair and maintenance 
of motor vehicles (49 CFR Part 396.17 through 396.23 and 
including Appendix G. and amendments thereto) shall apply to 
all for-hire motor carrier vehicles, whether common ca rrier s, 
con t ract carr i ers or exemp t carriers and all private motor carrier 
vehicles engaged in intrastate commerce over the highways of 
the State of North Carolina if such vehicles have a GVWR of 
greater than 10,000 pounds. Provided, any fami vehicle shall be 
exempt from the requirements of this Paragraph if: 

( 1 ) It is being operated by a farmer (or a person under the 
direct control of the fanner) as a private motor carrier of 
property: 

(2) It is being used to transport either: 



(A) 
(B) 



(3) 



agricultural products, or 

farm machinery, farm supplies, or both, to and 

from a fami: 
It is being operated solely within this State and within 
150 air-miles of the fanner's fann: 

(4) It is not being used in the operation of a for-hire motor 
carrier: and 

( 5 ) It is not carrying hazardous materials of a type or quantity 
that requires the vehicle to be placarded in accordance 
with 49 CFR 177.823. 

(d) Every motor vehicle registered or required to be registered 
in Nonh Carolina and subject to the inspection requirements of 
the Federal Motor Carrier Safety Regulations (49 CFR Part 396) 
which does not display a current approved State inspection 
certificate as provided in N.C. Gen. Stat. 20-1 83.2 must display 
a current approved federal inspection certificate when operated 
on the streets and highways of this State. On self-propelled 
vehicles the federal inspection certificate shall be displayed on 
the outside of the vehicle in a readily visible location on. or in 
the immediate vicinity of. the driver's door exclusive of the 
window or rear view mirror. On trailers and semitrailers, the 
federal inspection certificate shall be located on the left side as 
near as possible to the outside lower front of the vehicle. The 
inspection certificate shall contain at least the following legible 
information: 

( 1 ) The date of inspection: 

(2) Name and address of the motor carrier or other entity 
where the inspection report required by 49 CFR 
396.21(a) is maintained: 

Infonnation uniquely identifying the vehiclennspected if 
not clearly marked on the vehicle: and 
A certification that the vehicle has passed an inspection 
m accordance with 49 CFR 396.17. 

(e) All Code of Federal Regulations (CFR) Parts cited in this 
Section are incorporated herein by reference including any 
subsequent amendments. A copy of the CFR is available from 
the Office of Superintendent of Documents. U.S. Government 
Pnnting Office, Washington, DC 20402, at a cost set by that 
office, 

(f) The Commissioner mav adopt fines for out-of-service 
criteria. Such fines, as allowed bv G.S. 20- 1 7.7. may not exceed 
the rines adopted b\' the Commercial Motor Vehicle Safety 
Alliance that are in effect on the date of the violations. The 
commercial motor vehicle out-of-service maximum civil fine 
schedule shall be maintained in the Office oi the Commissioner 
of the Division of Motor Vehicles, be axailable for public 
inspection, and be updated annualh' on the first da\ of April. 
The out-of-service maximum civil fine schedule shall not apply 
to educational contacts or North American Standard Level-V 
inspections approved bv the Director of the DMV Enforcement 
Section and the Commissioner of Motor Vehicles. An 
educational contact for the purpose of this code shall mean a pre- 
planned, public safeiN inspection aciivitw focusinu on 
commercial motor vehicle safety awareness and compliance. 

i'j.) Any fines assessed for violation of an out-of-service 
criteria shall be assessed auainst the motor carrier of the 
commercial motor vehicle. 

(h) An\ \'ehicle beimi operated under the authority of a motor 



(3) 



(4) 



14:]6 



NORTH CAROLINA REGISTER 



Eebruan 15, 2000 



1454 



PROPOSED RULES 



carrier which has been assessed a fine or fines for violation of an 
out-of-service criteria shall not be released for operation until the 
violation is corrected or the oul-of-service condition is satisfied 
and all fines assessed for violation of the out-of-service criteria 
are paid. Where a motor carrier js assessed fines for a driver 
out-of-service condition, the commercial motor vehicle shall not 
be released for operation until such fines assessed to the motor 
carrier for violation ot' the out-of-service criteria by the driver 
are paid. 

Ijj Whenever a motor carrier of a commercial motor vehicle 
shall have a valid defense to the enforcement of the collection of 
fines for violation of out-of-service criteria, such motor canier 
shall pay such fine to the proper officer, and notify such officer 
in vvritiim that he pays the same under protest. Such payment 
shall be without prejudice to any defense or rights he may have, 
and he may, at any time within 30 days after such payment, 
demand the same in writing from the Commissioner ot Motor 
Vehicles. If the fines shall not be refunded within 90 days 
thereafter, he may sue such official in the courts of the State for 
the amount so demanded. Such suit must be brought in the 
Superior Court of Wake County, or in the county m which the 
motor carrier has a principal place of business in North Carolina. 

Authority G.S. 20-17.7: 20-21: 20-37.22: 20-183. 2{a): 20-3S1. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 
CHAPTER 32 - BOARD OF MEDICAL EXAMINERS 

Notice is hereby given in accordance with G.S. I50B-21.2 
that the NC Medical Board intends to amend ride{s) cited 
as 21 NCAC 32R .0101-.0104. Notice of Ride-makini; 
Proceedings was published in the Register on August 2. 1999. 

Proposed Effective Date: January 1 . 2001 

A Public Hearing will be conducted at 3:00 p.m. on March 3, 
2000 at the NC Medical Board, 1201 Front St.. Suite 100. 
Raleigh. NC 27609. 

Reason for Proposed Action: Comments were submitted to the 
Board after the rule was submitted to the Legislature. The 
Board has responded to these comments with revised rules. 

Comment Procedures: Written comments will be accepted until 
close of business March 16. 2000. Any interested person may 
submit written comments on the proposed rules by mailing the 
comments to Helen Diane Meelheim. PO Bo.x 20007. Raleigh. 
NC 27619. 



Fiscal Impact 
State Local 



Sub. None 



SUBCHAPTER 32R - CONTINUING MEDICAL 
EDUCATION (CME) REQUIREMENTS 



SECTION .0100 - CONTINUING MEDICAL 
EDUCATION (CMEVREQUIRED 

.0101 CONTINUING MEDICAL EDUCATION (CME) 
REQUIRED 

(a) CME is defined as knowledge and skills generally 
recognized and accepted by the profession as within the basic 
medical sciences, the discipline of clinical medicine, and the 
provision of healthcare to the public. CME should maintain, 
develop, or improve the physician's knowledge, skills, 
professional performance and relationships which physicians use 
to provide services for their patients, their practice, the public, 
or the profession. 

(b) Each person licensed to practice medicine in the State of 
North Carolina shall complete no less than 150 fifty (50 ) hours 
of practice relevant CME an n ually every three years in order to 
enhance current medical competence, performance or patient 
care outcome. At least 60 hours shall be in the educational 
provider-initiated category as defined in Rule .0 1 02 of this 
Subchapter. The remaining hours, if any, shall be in the 
physician-initiated category as defined in Rule .0102 of this 
Subchapter. Twenty (20) hou r s shall be in the p hysician- 
initiated catego r y and — thi r ty (30) hou r s — shall be — in — the 
educational prov i de r - in itiat e d catego r y. General medical reading 
is not applicable to physician-initiated CME. 

(c) The three year period described in paragraph (b) shall run 
from the physician's birthday beginning in the year 2001 or the 
first birthday following initial licensure. 

Authority G.S. 90-14(aHl5). 

.0102 APPROVED CATEGORIES OF CME 

The following are the approved categories of CME 

( 1 ) Physician-Initiated CME: 

(a) Practice based self study; 

(b) Colleague Consultations: 

(c) Office based outcomes research: 

(d) Study initiated by patient inquiries: 

(e) Study of community health problems; 

(f) Successful Specialty Board Exam for 
certification or recertification; 

(g) Teaching (professional, patient/public health); 
(h) Mentoring: 

(i) Morbidity and Mortality (M&M) conference: 

(j) Journal clubs; 

(k) Creation of generic patient care pathways and 

guidelines: 
(1) Competency Assessment. 

(2) Educational Provider-Initiated CME: All education 
offered by institutions or organizations accredited by 
the Accreditation Council on Continuing Medical 
Education ( ACCME) and reciprocating organizations 
or American Osteopathic Association (ADA)) 

( a ) Fomial Courses courses; 

(b) Scientific/clinical presentations, or 
publications: 

(c) Enduring Material (Audio- Video): 

(d) Skill development. 



1455 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



AuthoriTyG.S.90-14(a){l5). 

.0103 EXCEPTIONS 

ttr) A licensee currently enrolled in an AOA or Graduate 
Medical Education (ACGME) accredited graduate medical 
education program is exempt from the requirements of Rule 
.0101 of this Section. 

Ht) — A licensee shall have one year of exception f r om the 
requirements of .0001 after having received i nitial licensure. 

Authora\G.S.90-14iaHl5): 

.0104 REPORTING 

At the time of annual registration immediately followinii the 
CME reporting period, each Licensee shall report on the Board's 
annual registration fonn the number of hours of practice-relevant 
CME obtained in compliance with Section .0101 of this 
Subchapter. Records documenting CME hours must be 
documented by categories for three six consecutive years and 
may be inspected by the Board or its agents. 

AH!hont\G.S.90-14{a)(I5). 

CHAPTER 33 - MIDWIFERY JOINT COMMITTEE 

Notice is ht'iehx liivcn In accordance with OS. 150B-21 .2 
rliar the Midwifery Joint Coniniirtee intends to amend rules 
cited as 21 NCAC 33 .0101 - .0102. .0104, and .0106. Notice of 
Rnle-makin;^ Proceedings was published In the Register on 
December 1,1999. 

Proposed Effective Date: Jidy 1. 2000 

A Public Hearing will be conducted at 1 :00 p.m. on March 1?. 
2000 at the North Carolina Board of Nursing Office, 3724 
National Drive, Suite 201, Raleigh, NC. 

Reason for Proposed Action: To add definitions for clarity and 
to bring the fee structure In compliance with the fees adopted by 
the Committee. New General Statutes hy the 1999 Legislative 
Session for the Nurse Licensure Compact of the North Carolina 
Board of Nursing. 

Comment Procedures: Comments regarding this action shoidd 
be directed to Jean H. Stanley. APA Coordinator, Midwifery 
Jomt Committee, PO Box 2129, Raleigh, NC 27602-2129. 
Comments must he received hy the Midwifery Joint Conujiittee 
by 4:30 p.m. on March 16, 2000. 



Fiscal Note: 



State 



Local 



Sub None 
/ 



Ui 



.0101 ADMINISTRATIVE BODY AND 
DEFINITIONS 

(a) The responsibility for administering the provisions of 
Article lOA of Chapter 90 of the North Carolina General 
Statutes shall be assumed by an administrative body, the 
Midwifery Joint Committee, hereinafter referred to as the 
"Committee." The certified nurse midwife shall hereinafter be 
referred to as "midwife." 

(b) Definitions: 
"Primar\ Supervising Physician" means the licensed 
physician, who bv signing the certified nurse-midwife 
application, is held accountable for the on -going 
supervision, consultation, collaboration and 
evaluation of the medical acts performed by the 
certified nurse-midwife as defined in the site specific 
written clinical practice guidelines. 
(A) A physician in a graduate medical education 

program, whether fulh licensed or holding 
only a resident's training license, shall not be 
named as a primary supervising physician. 
A physician in a graduate medical education 
program who js also practicing in a non- 
training situation may supervise a certified 
nurse-midwife in the non-training situation if 
fully licensed. 



12] 



ill 



(B) 



"Back-up Primary Supervising Physician" means the 
licensed physician who, by signing an agreement with 
the certified nurse-midwife and the primary 
supervising phvsician(s) shall be held accountable for 
the supervision, consultation, collaboration and 
evaluation of medical acts by the certified-nurse 
midwife in accordance with the she specific written 
clinical practice guidelines when the Primary 
Supervising Physician is not available. 

(A) The signed and dated agreements for each 
back-up pnmarv supervising physician! s) shall 
be maintained at each practice site. 

(B) A physician in a graduate medical education 
program, whether fully licensed or holding 
only a resident's training license, shall not be 
named as a back-up primary superx'ising 
physician. 

(C) A physician m a graduate medical education 
program who js also practicing in a non- 
training situation may he a back-up pnmar\' 
supervising physician to a certified nurse- 
midwife in the non-training situation if fully 
licensed and has signed an agreement with the 
certified nurse-midwife and the primary 
supervising physician. 

"Obstetrics" means a branch of medical science that 



deals with birth and with its antecedents and sequels 
including but not limited to prenatal, intrapartum, 
postpartum, newborn, gynecology and otherwise 
unspecified primar\' health services for women. 



SECTION .0100 - ADMINISTRATIVE BODY AND 
DEFINITIONS 



Authority G.S.90-178.4(a). 



14:16 



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February 15. 2000 



1456 



PROPOSED RULES 



.0102 FEES 

(a) The fee for a new application and initial approval shall be 
ft ftv dolla r s ($50.()0|. one hundred dollars ($100.00). 

(b) The fee for annual renewal shall be twenty-f i ve do llar s 
m^eOf. fifty dollars ($50.0()). 

(c) The fee for reinstatement for a lapsed approval shall be 
five dollars ($5.00). 

Ai<rliorityG.S.90-178.4(h). 

.0104 PHYSICIAN SUPERVISION 

ttr) The applicant shall funiish the committee evidence, 
satisfactory' to the committee, that the applicant will perform the 
acts authorized by the Midwifery Practice Act under the 
supervision of a physician who is actively engaged in the 
practice of obstetrics in North Carolina. Such evidence required 
by the committee shall include a description of the nature and 
extent of such supervision and a delineation of the procedures to 
be adopted and followed by each applicant and the supervising 
physician responsible for the acts of said applicant for the 
rendering of health care services at the sites at which such 
services will be provided. Evidence to be provided to the 
committee shall include: 

( 1 ) mutually agreed upon written medical 
guidelines/protocols for clinical practice guidelines 
which define the individual and shared 
responsibilities of the midwife and the supervising 
physician(s) in the delivery of health care services; 

(2) mutually agreed upon written clinical practice 
guidelines guidelines/protocols for ongoing 
communication which provide for and define 
appropriate consultation between the supervising 
physician(s) and the midwife: 

( 3 ) periodic and joint evaluation of services rendered, e.g. 
chart review, case review, patient evaluation, and 
review of outcome statistics; and 

(4) periodic and joint review and updating of the written 
medical — guidelines/ p rotocols, clinical practice 
guidelines. 

(b) There will he documen t ation o n t he ou t pa t ien t reco r d t hat 
any seco n da ry supervising physic i an has. in fact, agreed to 
pro vide supe r vision and consul t ation t o t he midwife and has 
b e en a p proved by t he primaiy supervising physic ian(s). — The 
■seconda i y physic ian shall have an un r es tri cted license t o practice 
medicine in No rt h Carolina which has been confirmed wi t h the 
Board of Medical Examiners by t he prima i y physician(s). The 
secondai7 physician shall b e ac t ively e ngaged in the prac t ice of 
obs t e t rics. A secondary supe r vising physician isnecessar} ' when 
distance of delivery or bir t hing f r om t he si t e of prac t ice of t he 



by 



prima i T p hys i cian(s) is t oo grea t t o permi t ac t ual supervision 
t he prim an ' physician(s). — Sati sfac ti on of t he r eq ui r e men t of 
documen t ation may be achieved by a le tter of ag r eemen t signed 
by both primaiy and secondaiy physicians appended to the 
p a t ien t 's a nt e p anum record prior t o t he t hnly-fifth week of 
ges t a t ion. 

AialwntyG.S.90-I78.4(b). 



.0106 NURSE MIDWIFE APPLICANT STATUS 

fr) Graduate Nurse Midwife Applicant status may be granted 
by the Midwifery Joint Committee under the following 
circumstances: 

(1) a nurse licensed to practice as a registered nurse in 
North Carolina who meets all of the following 
criteria: 

f7¥)(a) has graduated from a nurse midwifery 
education program which meets the criteria of 
the American College of Nurse Midwives for 
graduates to seek certification: 

ffi^(b) has applied to take or is waiting for results of 
the certification exam: and 

(€)(£] whose application for approval as a certified 
nurse midwife has been received by the 
Midwifery Joint Committee. 

(2) nurse midwife applicant status may not exceed a 
period of six months beyond date of completion of 
nurse midwifery education program or until notice of 
certification is received, whichever occurs first. 

(3) a nurse midwife applicant, described in Item (1) and 
(2) Pa r ag r a p h (a) of this Rule, may function in 
accordance with 21 NCAC 33:«eB4 .0104 and 21 
NCAC 33:6665 .0105 with the following limitations: 



tfiitb] 
tClici 



mim 



wear identification as a "Graduate Nurse 
Midwife": 

have no prescribing privileges; 
practice only in situations where the 
supervising physician or a Certified Nurse 
Midwife approved to practice in the state of 
North Carolina is physically present in the 
practice site in which the applicant is working: 
and 

have supervising physician or a Certified Nurse 
Midwife approved to practice in the state of 
North Carolina countersign all medical 
notations in patient records on a daily basis. 
hi the event the individual leaves the job in which 
he/she has worked as a nurse midwife applicant 
before approval as a certified nurse midwife is 
granted, the individual must submit a written 
explanation to the Midwifery Joint Committee before 
he/she may apply to work in the nurse midwife 
applicant status in another job. 
(b) Ce rt ified Nu r se Midwife Applican t s t a t us may be g r an t ed 
by t he — Midwifery Join t — Commi tt ee — under t he — following 
c i rcu m s t ances: 



(4) 



t+1 a regis t ered i 



[ Cei l ified 



nurse previously approved as a ' 
Nurse Midwife by t he Midwifeiy Joi nt Commi tt ee 
and whose a p plica t ion for a ppr oval in a new job has 
been rece i ved by t he Midvvife r \ ' Join t Commi t tee. 
P r ior t o approval, t h e Certified Nurse Midwife 
a p p l ic ant may func t ion in accordance wi t h Rules 
.0004 and .000 5 of this Chap t er wi t h t he following 
lim it a t ions : 

(tV) wear identifica t ion as a "Certified Nurse 

Midwife": 
("Bi have no pr escribing privileges: and 



1457 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



t€i have su p ervising p hysician o r Ce r t i fied Nurse 

Midwife a p p r oved lo pr ac t ic e i n the state of 
North — C a ro l i na — counte r sign — aH — medical 
notations in p atient r eco r ds on a daily b as i s. 

Amhonn- G.S. 90-17S.2: 90-178.5: 90-171.83. 

CHAPTER 54 - NORTH CAROLINA PSYCHOLOGY 
BOARD 

Notice is hereby given in accordance with G.S. 150B-21 .2 
that the North Carolina Psychology Board intends to adopt 
rules cited as 21 NCAC 54 Jbll. 2104. 2801 - .2804 with 
changes from the proposed text noticed in Register. Volume 13. 
Issue 13. pages 1050 - l.05(\ January 4. 1999. Notice of Rule- 
making Proceedings was published in the Register on September 
2. 1997. 

Proposed Effective Date: August 1, 2001 

Reason for Proposed Action: To clarify exemption fi-om the 
NC Psychology Practice Act for qualified members of other 
professional groups; to set continuing education requirements: 
to define ancillary services. 

Comment Procedures: Any interested person may submit 
written comments addressed to Martha Storie. E.xecutive 
Director. North Carolina Psychology Board. 895 State Farm 
Road. Suite 101 . Boone. NC 28607. no later than April 4. 2000. 

Editor's Note: An agency may not adopt a rule that differs 
substantially p'om the text of a proposed rule published in the 
Register , unless the agency publishes the text of the proposed 
different ruls and accepts comments on the new text. 



Fiscal Note: 
State Local 



Sub None 



SECTION .1600 - GENERAL PROVISIONS 

.1611 PRACTICE BY OTHER PROFESSIONALS 

(a) Qualified members of other professional groups are 
individuals certified or licensed in North Carolina by another 
letiislativelv created occupational licensing board ni the State of 
North Carolina, or who are recognized by such a board as 
qualified members of that professional group, to provide ser\'ices 
as defined in G.S. 90-270. 2(iX) as the practice ot psychology. 

(b) Credentials or claims to credentials which do not 
demonstrate that individuals are qualified members of other 
professional groups meeting the exemption of G.S. 9()-27().4(e) 
include the following: 

( 1 ) exemption from another profession's licensure or 
certification law : 

(2) a certificate or license issued in another jurisdiction: 

(3) a certificate or license issued by a national association: 



(4) membership in a North Carolina or national organization: 
or 

(5) a job title. 

Authority G.S. 90-270.4(e): 90-270.9. 

SECTION .2100 - RENEWALS 

.2104 CONTINUING EDUCATION 

(a) The purpose of continuing education is to provide for the 
continuing professional education of aH psychologists licensed 
by the North Carolina Psychology Board consistent with the 
purpose ot' the Board which is to protect the public trom the 
practice of psychology by unqualified persons and from 
unprofessional conduct by persons licensed to practice 
psychology. 

(b) Compliance w ith this Rule shall be a condition for license 
renewal. TTiis Rule shall apply to all indi\iduals licensed by the 
North Carolina Psychology Board who choose to renew their 
licenses in North Carolina. Licensees who would otherwise be 
exempt from licensure, e.g.. not practicing psychology in North 
Carolina, must relinquish their license if they do not wish to 
comply with the requirements specified in this Rule. 

(c) A continuing education credit is defined as one hour of 
instructional time as defined in Paragraphs (d) and ^ej ot' the 
Rule. 

id] Category A requirements shall be met through attendance 
at formally organized courses, seminars, workshops, 
symposiums, and postdoctoral institutes. Programs shall be 
offered by the American Psychological Association. American 
Psychological Association approved sponsors. North Carolina 
Psychological Association. North Carolina Psychology Board. 
or North Carolina Area Health Education Centers . Instructional 
time shall be specified bv the sponsor. 

le) Category B requirements shall be met through attendance 
at colloquia. presentations of invited speakers, grand rounds, and 
in-house seminars: attendance at programs offered at meetings 
of professional or scientific organizations vyhich are not 
approved for Category A credit: and participation m formally 
organized study groups or journal clubs. One continuing 
education unit shall be credited for each hour ot participation in 
Category B activities. 

(f) Licensed Psychologists, holding either a provisional or 
permanent license, and Licensed Psychological Associates shall 
complete a minimum of J_8 contmumg education credits m each 
biennial renewal period. Continuing education credits shall not 
can'y over from one renewal period to the next. At least nine 
continuing education credits shall be m Category A acti\'ities 
which shall include a minimum of three continuing education 
credits m the area of ethical and legal issues m the professional 
practice of psychology. 

(g) Topics for Category A and Category B requirements shall 
fall vs'ithin the follovying areas: 

( 1 ) ethical and legal issues in the professional practice of 
psychology, and 

(2) the maintenance and upgrading of professional skills 
and competencies within the ps\chologist's scope of 
practice (includes training m em pirically supported 



14:16 



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February 15. 2000 



1458 



PROPOSED RULES 



treatments, the application of research to practice and 
training in best practice standards and tzuidehnes). 
(h) Continuing education credits shall not be allowed for the 
followinii activities: 

(1 ) business meetings or presentations, professional 
committee meetings, and meetings or presentations 
concerned with the management ot' a professional 
practice; 

(2) membership, office in, or participation on boards and 
committees of professional organizations; 

(3) presentations and publications intended primarily for 
a lay audience; and 

(4) personal psychotherapy or personal growth 
experience. 

(jj An individual licensed on or before October 1 . 2000. shall 
attest on the license renewal application for the 2002-2004 
biennial renewal period, and on each subsequent biennial 
renewal application, to having met the mandatory continuing 
education requirements specified in this Rule. An individual 
licensed after October 1. 2000. shall attest on the second license 
renewal application following licensure, and on each subsequent 
biennial renewal application, to having met the mandatory' 
continuing education requirements specified in this Rule. 

(jJ An applicant for reinstatement of licensure shall document 
that he or she has completed a minimum of J_8 continuing 
education units as specified m this Rule within the two years 
preceding the date of application for reinstatement of licensure 
and shall attest on each subsequent biennial renewal application 
to having met the mandatory continuing education requirements 
specified in this Rule. 

(Jo A licensee shall maintain certificates from Category A 
programs and written documentation, including instructional 
time, dates, and summary of content, for Category B activities 
consistent with this Rule for a minimum of seven years and shall 
provide the documentation within 30 days after receivingwntten 
notification from the Board that the documentation is required. 
The Board shall randomly verify the documentation of required 
continuing education credits for a percentage of licensees and 
shall routinely do so during the investigation of any complaints. 
A licensee shall not submit documentation of continuing 
education credits obtained unless directed to do so by the Board. 

Authority G.S. 90-270.9: 90-270. J4(a)(2). 

SECTION .2800 - ANCILLARY SERVICES 



.2801 SCOPE 

Pursuant to G.S. 



90-270.21. licensed psychologists 



(provisional and permanent), licensed psychological associates. 
or temporary licensees, all ol whom shall be identified as 
"psychologists" under G.S. 90-270.2(9). may employ or 
supervise unlicensed individuals to provide ancillary services. 
Ancillary services shall be considered to be only those activities 
which an individual shall engage in for the puipose of providing 
assistance to a psychologist in providing psychological services 
to patients, clients, and their families. Not included as ancillan' 
services are those clerical and administrative services which are 
not directly related to assisting a psychologist in the provision of 



psychological services. The psychologist shall retain full 
professional responsibility for the quality of the services 
rendered and for the effects of the services upon the client, 
patient, or other individuals. This responsibility for the quality 
of services delivered by supervisees and for the welfare of the 
client or patient shall be no different than if the psychologist had 
provided the services in person. The psychologist shall be the 
provider of psychological services and shall have had face-to- 
face contact during the course of services with all patients, 
clients, or other recipients of services who are provided ancillary 
services by unlicensed persons as part of the psychologist's 
services. Any psychologist yvho employs individuals to provide 
ancillary services shall be subject to disciplinary action under 
G.S. 90-270. 15(a) for violations ot' the provisions of the North 
Carolina Psychology Practice Act. Failure of any psychologist 
to provide training and supervision to the psychologist's 
employees and supervisees may subject that psychologist to 
disciplinary action pursuant to G.S. 90-270. 15(a). 

Author^' G.S. 90-270.9: 90-270.21. 

.2802 TITLES 

Titles of individuals providing ancillary services shall not 
indicate either that these individuals are licensed or trained in 
psychology or that the individuals are providing services defined 
as the practice of psychology in G.S. 90-270.2(8). Unlicensed 
individuals providing ancillary services shall not use any title 
incorporating the words "assessment." "associate." "clinical." 
"counseling." "diagnostic." "evaluation," "examiner," 
"psychologic," "psychological." "psychologist." "psychology." 
or derivatives ot' such. Examples of titles that unlicensed 
individuals may use include "aide," "assistant," "behavioral," 
"testing," "technician," "psvchometrist," or derivatives of these 
titles. 

Authority G.S. 90-270.9: 90-270.21. 



.2803 EMPLOYMENT AND SUPERVISION OF 
UNLICENSED INDIVIDUALS 

(a) Any psychologist who employs or supervises unlicensed 
individuals who provide ancillary services as specified in Rule 
.2801 of this Section shall maintain documentation of the 
relationship between the psychologist and the unlicensed 
individual beginning with the date upon which the relationship 
IS initiated. Documentation shall be in the form of a written 
agreement that includes the responsibilities of both parties. Said 
agreement shall be signed and dated by both parties. Except 
when prevented from doing so by circumstances beyond the 
psychologist's control, the psychologist shall maintain 
documentation of the relationship yvith the unlicensed individual 
for a minimum of seven years after the termination of the 
relationship and shall present the documentation to the Board 
upon yvritten request. If the unlicensed individual is supervised 
bv more than one psychologist, there shall be an appointed 
psychologist of record who shall have primary responsibility for 
the coordination of and provision of services by the unlicensed 
individual. The psychologist of record shall have responsibility 



1459 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



PROPOSED RULES 



tor record keeping with regard to the services of the unlicensed 
individual- 
lb) The psychologist shall be competent to render all ancillary 
services specified in Rule .2801 of this Section that the 



(c) Unless provided prior approval b^ the Board, a 
psychologist may not employ or supervise individuals to provide 
ancillary services who have previously been licensed or certified 
to practice psychology who have relinquished their licenses or 



employee or supervisee shall render, except that clearly defined certification or who have had their licenses or certification 



areas of an employee's or supervisee's supervision may be 
delegated to other psychologists affiliated with the employment 
setting whose competence in the delegated areas has been 
demonstrated by previous education, training, and experience. 

(c) Any qualified psychologist who employs or supervises 
individuals to provide ancillar\' services shall be accessible at all 
times, either on-site or through electronic communication, and 
shall be available to render assistance when needed to the 
unlicensed individual and patient or client, or shall have 
arranged for another qualified psychologist to be readily 
accessible in the absence of the supervising psychologist. 
Psychologists shall meet with all unlicensed individuals whom 
they supervise to the extent necessary to provide appropriate 
supervision for the activities in which the unlicensed individual 
is engaged. The psychologist shall maintain documentation of 
supervisory sessions, including dates, appointment times, and 
length of time of each supervision session, for a period of at 
least seven years following the termination of ancillary services 
by ancillary services personnel. 

(d) A psychologist whose license has been revoked or 
suspended or who has otherwise been subject to disciplinary or 
remedial action by the Board pursuant to G.S. 9()-27(). 15 shall 
not continue to employ or supervise unlicensed individuals and 
shall not initiate subsequent employee or supervisory' 
relationships without the prior approval of the Board. The 
Board shall have the authority to restrict or revoke a 
psychologist's privilege to utilize unlicensed individuals to 
provide ancillary services if the Board finds that an unlicensed 
person in the psychologist's employment or under the 
psychologist's supervision has violated any provision of G.S. 
9()-27(). 15(a) which would otherwise apply to licensed 
individuals. 

Aiithoritx G.S. 90-270.9: 90-270.21. 

.2804 QUALIFICATIONS AND TRAINING 

(a) Prior to the provision of ancillary services by an 
unlicensed individual, the psychologist supervising or employing 
the individual shall provide training in and establish thai the 
individual has sufficient knowledge and understanding of 
confidentiality, exceptions to confidentiality including mandated 
reporting of suspected abuse or neglect, and professional ethics. 
Training in professional ethics shall include the Code of 
Conduct contained in the North Carolina Psychology Practice 
Actat G.S.90-27().l5(a). 

(b) Any psychologist supervising or employing an unlicensed 
individual to provide ancillary services shall pro\'ide instruction 
in and establish that the individual shall have received training 
sufficient to perform the activities delegated to the unlicensed 
individual. The psychologist shall maintain documentation of 
the employee's or supervisee's training for at least seven years 
following the termination of ancillary services by ancillary 
services personnel. 



restricted, suspended, or revoked by the Board in North Carolina 
or any other jurisdiction. 

Aiithoritx G.S. 90-270.9: 90-270.21. 

CHAPTER 68 - NC SUBSTANCE ABUSE 
PROFESSIONAL CERTIFICATION BOARD 

Notice is hereby i;iven in accordance with G.S. 150B-21 .2 
that the NC Substance Abuse Professional Certification 
Board intends to amend rules cited as 21 NCAC 6S .0203, 
.0205 - .0200, .0208 - .0209. .0211 - .0213, .0503. and .0701. 
Notice of Rule-making Proceedings was published in the 
Register on November 15, 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 10:00 a.m. on March 1 7. 
2000 at the Holiday Inn. 2 Maple Avenue. Burlington. NC 
27216. See the Maitre d' at the hotel. 

Reason for Proposed Action: To add definitions and clarify 
procedures. 

Comment Procedures: The public is invited to attend the public 
hearing and submit comments. Written comments may be 
submitted through March 1 7. 2000 to Ms. Ann Christian, Rule- 
making Coordinator, NC Substance Abuse Professional 
Certification Board, PO Box 2455, Raleigh, NC 27602. 



Fiscal Note: 






State Local 


Sub 


None 



SECTION .0200 - CERTIFICATION 

.0203 CERTIFICATION AS SUBSTANCE ABUSE 
COUNSELOR INTERN 

(a) An applicant may choose to by-pass early registration at 
the entry level and seek designation as a Counselor Intent. 

(b) To be designated as a Substance Abuse Counselor Intern. 
a counselor shall submit and successfully complete the 
following: 



(I) 
(2) 



(3) 



A registration fomi provided by the Board. 
Documentation of high school graduation or 
completion of the GED. as well as any baccalaureate 
or advanced degree the applicant may have completed. 
A transcript shall serve as the necessary 
documentation where appropriate. 
A signed form attesting to the applicant's commitment 
to abide by the ethical standards of the Board. 



14:16 



NORTH CAROLINA REGISTER 



February 15. 2000 



1460 



PROPOSED RULES 



(4) A signed supervision contract provided by the Board 
documenting the continuing supervision process by a 
Board approved supervisor. 

(5) Documentation provided by the Board verifying the 
successful completion of 300 hours of Supervised 
Practical Training. 

(6) Successful completion of the written examinat i on. 
examination developed by the IC&RC7AODA. Inc. or 
its successor oruanization. 

(7) Payment of a non-refundable, one hundred dollar 
($100.00) written exam fee plus a one hundred dollar 
($100.00) registration fee if not already registered 
with the Board. 

(c) Upon the failure of an applicant to achieve a passing 
score, the applicant may request a retest and pay a non- 
refundable retest fee of one hundred dollars ($100.00) after the 
period of three months from the date of the test. 

(d) Once an individual has been designated as a Substance 
Abuse Counselor Intern, he or she may function as a counselor 
under an approved supervisor at a ratio of one hour of 
supervision for every 40 hours of practice. 

Authority G.S. 90-113.30; 90-113.33: 90-113.34: 90-113.38: 
90-113.39; 90-113.40; 90-113.41. 

.0205 CERTIFIED SUBSTANCE ABUSE 
COUNSELOR CERTIFICATION 

Requirements for certification as a Certified Substance Abuse 
Counselor shall be as follows: 

(1 ) Successful completion of at At least 6000 hours of 
paid or volunteer supervised experience earned in not 
less than three years, 300 hours of which shall be 
supervised practice. If the work setting is not 
exclusively substance abuse focused, the applicant 
may accumulate experience proportional to the 
substance abuse services performed: 

( 2 ) Board approved education and training of at least 270 
clock hours as follows: 

(a) Substance Abuse Specific ( S AS ) education and 
training in the amount of at least 190 hours; 

(b) Up to 80 hours can be directed toward general 
professional skill building (GSB) to enhance 
counselor development: 

(c) No more than 25% of the 270 hours (67.3) 
hours may be inservice education received 
within the applicant's organization by staff of 
the same organization: 

(d) All 270 clock hours needed for initial 
certification must be in the core competencies. 
Core competencies are listed as follows: 

(i) Basic alcoholism, drug addiction and 

cross addiction knowledge: 
(ii) Screening, intake, orientation and 

assessment: 
(iii) Individual, group and family counseling 

and intervention techniques: 
(iv) Case management, treatment planning, 

reporting and record keeping: 



(3) 



(4) 



(5) 



(6) 

(7) 

(8) 

(9) 
(10) 



(v) risis intervention skills: 
( vi ) Prevention and education: 
(vii) Consultation, referral and networking 

that utilizes community resources; 
( viii) Ethics, legal issues, and confidentiality; 
(ix) Special populations which include but 
are not limited to individuals or groups 
with specific ethnic, cultural, sexual 
orientation, and gender characteristics as 
well as persons dealing with HIV, co- 
occuring disabilities and perinatal 
issues: 
(x) Physiology and pharmacology of 
alcohol and other drugs that include the 
licit and illicit drugs, inhalants and 
nicotine: 
(xi) Psychological, emotional, personality 

and developmental issues; and 
(xii) Traditions and philosophies of 12-step 
and other recovery support groups; 
(e) Of the 270 clock hours, applicants for 
certification as a Substance Abuse Professional 
must document twelve hours of HIV or AIDS 
training and education and six hours 
professional ethics training and education. 
A one hundred dollar ($100.00) oral examination and 
case preparation fee plus a one hundred dollar 
($100.00) written exam fee and a one hundred dollar 
($100.00), non-refundable registration fee, unless 
previously paid. The applicant may request a retest 
and pay a non-refundable retest fee of one hundred 
dollars ($100.00) if a passing score is not achieved 
and at least three months have passed from the date of 
test: 

Successful completion of the ICRC/AODA 
IC&RC/AODA, Inc. or its successor organization 
written exam; 

Successful completion of an ICRC/AODA 
IC&RC/AODA, Inc. or its successor organization oral 
examination and case presentation administered by the 
Board following review and approval by the Board of 
the requirements in this Rule: 
Completed evaluation fornis and contracts for 
supervision, these forms must be mailed directly to 
the Board by three references: a supervisor, co- 
worker, and colleague; 

A signed form attesting to the applicant's adherence 
to the Ethical Standards of the Board; 
Documentation of high school graduation, completion 
of GED. baccalaureate or advanced degree; 
Completed registration fonns; 



Res 



a n d j ob descrip t ion which verifies jo b 



;sume a n d \ oo descrip t ion whicr 
function f or a supervised experience of 6000 hou r s. 
Resume; 
(11) Job description which verifies job function. 

Authority G.S. 90-113.30; 90-113.31; 90-113.33; 90-113.36: 
yo-l 13.39: 90-1 13.40. 



1461 



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February 15, 2000 



14:16 



PROPOSED RULES 



.0206 PROCESS FOR PREVENTION CONSULTANT 
CERTIFICATION 

(a) This certification shall be offered to those persons whose 
primary responsibilities are to provide substance abuse 
prevention and education, alternative activities, community 
organization, networking, and referral. Prevention consultants 
may be either based in human service agencies or other 
appropriate settings. 

(b) Requirements for certification shall be as follows: 

( 1 ) 6 hou r s 10.000 hours (five years ) without a 
baccalaureate detzree or 4.000 hours (two years) with 
a baccalaureate degree in a human services field from 
a reeionalK accredited colleee or universitN': which is 
the equivalent of th r ee years full-time experience in 
t he field; 

(2) 270 hours of board approved academic and didactic 
training divided m the follow ing manner: 

(A) 170 hours in the area of primary and secondary 
prevention and life skills training: and 

(B) 100 hours in substance abuse specific studies; 

(3) A minimum of 300 supervised practice hours 
documented by a Board approved alcohol, drug or 
substance abuse professional; 

(4) Evaluations from a supervisor on this practice as well 
as two evaluations from colleagues or co-workers: 

(5) Successful completion of an ICRC/AOD.^ 
IC&RC/AODA. \nc. or jjs successor oraanizaiion 
written examination: 

(6) A signed fomi attesting to the applicant's adherence 
to the Ethical Standards of the Board; 

(7) A registration and testing fee of two hundred twenty- 
five dollars ($225.00). twenty-five dollars ($25.00) of 
which is due when the request is made for the 
application packet and the remainder at the time of 
filing. 

Authority G.S.90-1 13 .30:90-1 13 .31 :90-l 13 .33 :90-l 13. 34:90- 
113.40:90-113.41. 

.0208 CONTINUING EDUCATION REQUIRED FOR 
COUNSELOR AND PREVENTION 
CONSULTANT RECERTIFICATION 

(a) Each certified Counselor and Prevention Consultant shall 
receive 60 hours of Board approved education dunng the current 
certification period which shall be documented. A minimum of 
30 hours shall be substance abuse specific (S.AS) and no more 
than 25 percent or 15 hours can be inservice education. This 
education may include a combination of hours including 
attending workshops, receiving clinical supervision and 
providing workshops. 

(b) Recertification educational guidelines as a Substance 
Abuse Professional require: 

( 1 ) No more than 25 percent or 1 5 hours may be inservice 

education, received within your organization by staff 

of the same employment. 
("21 No mo i' e t han 25 percen t or 15 h our s recei\ 'i ng 

super\ 'i sion wi t h t wo hours of supervision t ransla t ing 

t o one hour of educa t ion. 



i2j<-3-) No more than 25 percent or 15 hours of workshop 
presentation with two h o u r s one hour of presentation 
translating to one hour of education. Workshop 
presentation shall be a part of an event pre-approved 
by the Board. 

(3) Hi No more than 25 percent or 1 5 hours of Alcohol/Drug 
Education Traffic School (ADETS) and Drug 
Education School (DES) events. 

(4_)t5-) An applicant shall include documentation of each 
event submitted. 

DJtfr) All applicants shall include six hours of HIV/AIDS 

training and education and three hours of professional 

ethics training and education for each recertification. 

(6) No more than 25 percent self study, pre-approved by 

the Board. 

(c ) To be recertified, a certified professional must submit the 

following: 

( 1 ) A completed application fomi with continumg 
education documented: and 

(2) A non-refundable one hundred dollar (5100.00) 
recertification fee. 

Aiithoritx G.S. 90-113.30: 90-113.33: 90-113.37: 90-113.38. 

.0209 RECIPROCITY 

(a) If a counselor, prevention consultant, clinical supervisor, 
or clinical addictions specialist holds a certification in an 
ICRC/AODA member state issued by an IC&RC/AODA, hu\ 
member board or a successor organization as a certified 
substance abuse counselor (to include alcohol and other drugs), 
certified prevention consultant, or certified clinical supervisor, 
or certified clinical addictions specialist, the person may transfer 
this certification to North Carolina by applying a transfer fee as 
assessed by the ICRC/AODA IC&RC/AODA. Inc. or its 
successor organization. 

(b) The reciprocal certification effective date shall remain the 
same as in the previous state. 

(c) At the time when recertification is required, it will be the 
individuaFs responsibility to submit an application for 
recertification. For the period of the first recertificaiton in North 
Carolina, the Board shall accept the member's fonner State 
recertification requirements for the purpose of reciprocal 
recertification. At the end of this recertification period, it shall 
be the individuaFs responsibility to confomi to the 
recertification requirements of North Carolina in effect at the 
time of recertification. 

Aiithontx G.S. 90-113.30: 90-113.33: 90-113.37: 90-113.3S. 

.021 1 PROCESS FOR CLINICAL SUPERVISOR 
CERTIFICATION 

(a) Clinical Supervisor Certification shall be a volun t a r y 
ce rt i fi ca tion, h is an aspect of staff development dealing with 
the clinical skills and competencies for persons providing 
counseling. 

(b) Requirements for certification shall be; 

( 1 ) Applicant shall obtain and maintain substance abuse 
co u nselor certification as a substance abuse counselor 



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1462 



PROPOSED RULES 



or a clinical addictions specialist in order to be 
eligible for Clinical Supervisor Certification; 
Ce r t i ficat i o n w i th the exce p tion of tho se su p e r viso r s 
h o ld i ng a maste r s deg r ee and certified pursuant to a 
written exam pr ior to July 1. 1994; 

(2) After June 30. 1998. all All applicants shall be 
required to hold a master's degree or higher education 
in a human services field with a clinical application 
from a regionally accredited coUeee or university. 

( 3 ) 12 . 000 hou r s o r six yea r s !S.()()() hours or four years 
experience in the field of alcohol and other drug abuse 
counseling o r 8.000 hours o r fou r yea r s ex p e r ience if 
the — a p p licant — hvc^ — a — maste r 's deg r ee — or higher 
education. (After June 30. 1998. all ap p licants shall 
be r equi r ed to hold a master's degree or highe r level 
of education). ( 10.000 hours to insure reciprocity 
pursuant to IC&RC/AODA. hie, or its successor 
organization's requirements); 

(4) Thirty hours of su b stance abuse clinical supervision 
specific education o r t r aining for initial certification 
and 15 hours of substanc e abuse clinical or training 
supervision specific education for r ece r tificatic m re- 
certification (which will occur every two years). 
These hours shall be reflective of clinical supervision 
or clinical supervision of the twelve core functions in 
their clinical application and practice and may also be 
used as r ece r tificat i on re-certification hours for 
counselor certification; certification. For the purpose 
of re-certification as a Clinical Supervisor. 25 percent 
of the required total hours may be obtained by 
providing supervision of a substance abuse counselor 
or clinical addictions specialist. 

(5) Three letters of reference: one from a substance 
abuse professional who can attest to supervisory 
competence and two from either substance abuse 
counselors who have been supervised by the 
candidate or substance abuse professionals who can 
attest to the applicant's competence; 

(6) Successful completion of an ICRC/AODA 
IC&RC/AODA. Inc. or ijs successororganization ' s 
written examination; 

(7) Payment of all fees. A fee of twenty-five dollars 
($25.00) shall be submitted to the Board with a letter 
of intent in order to receive the application packet. A 
fee of two hundred dollars ($200.00) shall be 
submitted to the Board when the application packet is 
completed and mailed forte (one hundred dollars 
($100.00) ($100.(X)) shall be the registration and 
processing fee and one hundred dollars ($100.00) 
($100.00) is the written test fee); and 

(8) A fee of one hundred dollars ($100.00) shall be 
required as a r ecer t ifica t ion re-certification fee. 

Aiiihoriry G.S. 90-11330: 90-113.33: 90-113.34: 90-113.38: 
90-] 13.40: 90-1 13.41. 

.0212 PROCESS FOR RESIDENTIAL FACILITY 
DIRECTOR CERTIFICATION 



(a) Residential facility director certification is a voluntary 
ce r tification. It can be obtained and continued by any person 
certified as a Substance Abuse Counselor. Counselor or Clinical 
Addictions Specialist. 

(b) Requirements for certification are as follows; 



(1) 

(2) 
(3) 

(4) 



(c) 



50 hours of Board approved academic and didactic 
management specific training; 
Recommendation of applicant's current supervisor; 
Positive recommendation of a colleague and co- 
worker of the applicant; and 

Registration and application fee of two hundred 
twenty-five dollars ($225.00). twenty-five dollars 
($25.00) of which is due when requesting application 
and the remainder is due upon filing. 
In addition to meeting the continuing education 



requirements provided to practice as a Certified Counse lor . 
Counselor or Clinical Addictions Specialist, in order to maintain 
uninterrupted certification as a Residential Facility Director, the 
applicant shall take 40 hours of continuing education every two 
years and maintain proper documentation of such training. 
Anyone allowing certification to lapse beyond three months of 
the r ece r tification re-certification due date shall be required to 
reapply as a new applicant. 

Authority G.S. 90-113.30: 90-113.33: 90-113.35: 90-113.38: 
90-113.39:90-113.40. 

.0213 CONTINUING EDUCATION APPROVAL 
POLICY 

(a) The Board shall approve educational events for 
professional certification. One certified hour is defined a as one 
contact hour of participation in an organized continuing 
education experience under responsible sponsorship, capable 
direction and qualified instruction. Continuing education used 
to meet the certification requirements shall be reviewed and 
approved by the Board. If the sponsor does not obtain credit 
from the Board, the individual participants shall be responsible 
for supplying all of the required information for each session at 
the time of request for certification or recenifica t ion re- 
certification or conversion. The Standards and Credentials 
Committee shall review requests once monthly. Submission of 
approval requests should be postmarked 45 days prior to opening 
day of the event. 

(b) Any applicant for training approval shall submit; 

(1) Title of course, date, location, individual or 
organization sponsor, whether it will be held only 
once or recurring. 

(2) Presented s) who shall attach a resume outlining 
expertise in the subject area and content of the 
session. 

(3) Brief but thorough description of contents of track, 
course, seminar, etc. and the type of credit hours 
being requested, to include substance abuse specific 
or general skill building. 

(4) Agenda, to include the breakdown of time including 
. a 15 minute break for every two hours of education 

and amount of time allowed for meals. 

(5) Application for training approval shall include a copy 



1463 



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February 15, 2000 



14:16 



PROPOSED RULES 



of the objective evaluation tool to be used. 
(6) A summary of evaluation that shall be submitted to 

the Board within 45 days following the program 

date(s). 
(c) The Board resei^es the right to review programs by 
sending a Board member or designee to monitor the event or a 
portion of the event. When fulfilling this quality assurance role, 
the designated Board member person shall present a letter of 
introduction to the presenter. The Board member shall not 
receive certification or re-certification hours for attendance at 
these events. 



(d) Certification hours may be awarded only for actual hours 
completed. 

(e) Certificates are not to be released until the event ends or 
they shall be modified to reflect the actual hours completed. 

(f) Providers of Board approved events are required to 
document attendance at individual events for schools, courses, 
curricula and conferences. 

(g) Event sponsors shall maintain attendance and evaluation 
records for no less than three years. 

( h ) Training approved by t€R€ IC&RC/AODA, Inc. member 
boards and organizations granted deemed status shall be 
accepted with appropriate documentation of completion. 

(i) Employer hiservice events shall meet the same 
requirements as above. Inservice includes any event provided in 
the applicant's organization by a person under the same 
employment as the applicant ( military employment is considered 
within the same department). However, if 209;: of the 
participants are non-employees of the sponsoring and presenting 
agency, the standard fee schedule shall be in effect. Education 
received within the organization by outside trainers is not 
considered inservice. 

(j) Credit shall not be given for the following: 



(I) 



the 



(2) 



(3) 



Banquet speakers unless the content meets 

requirements in this Rule: 

Case — p resentation; Makinu one's own case 

presentation: or 

Registration time, 
(k) Presenters shall be given one hour of credit for every two 
hotrrs one hour presented. However, if the original presentation 
is repeated, hours can only be credited for the oriiiinal 
presentation. 

(Il The Board may revise or rescind credit hours if 
infonnation is received documenting that a previously approved 
event was not presented as it was approved. 

Authonn- G.S. 90-11 J JO; 90-113.33; 90-113.38; 90-113.39; 
90-113.40. 



SECTION .0500 - ETHICAL PRINCIPLES 
OF CONDUCT 

.0503 COMPETENCE 

(a) The substance abuse professional shall recognize that the 
profession is founded on national standards of competency 
which promote the best interests of society, of the client and of 
the profession as a whole. The counselor substance abuse 
professional shall obtain continuing education as a component 
of professional competency. 

( 1 ) The substance abuse professional shall p revent the 
practice of substance abuse counseling assist m the 
prevention of practices by unqualified or unauthorized 
p e r sons, persons in the field. 

(2) The substance abuse professional who is aware of 
unethical conduct or of unprofessional modes of 
practice shall report such violations to the appropriate 
certifying authority. 

(3) The substance abuse professional shall recognize 
boundaries and limitations of counselor's his or her 
competencies and not offer services or use techniques 
outside of these professional competencies. 

(4) The substance abuse professional shall recognize the 
effect of professional impaimient on professional 
performance and shall be willing to seek appropriate 
treatment for oneself or for a colleague. The 
counselo r substance abuse professional shall support 
peer assistance programs in this respect. 

(b) No person shall be certified as a substance abuse 
professional who is sentenced to an active or probationar\' term 
by the courts of this land and any part of the sentence is 
unserved. 

Authority G.S. 90-113.30: 90-113.34; 90-113.36; 90-113.37; 
90-113.39; 90-113.40; 90-113.41; 90-113.43; 90-113.44. 

SECTION .0700 - APPEALS PROCESS 

.0701 HEARING BEFORE BOARD; TIME 
REQUIREMENT 

( a ) Upon denial, suspension or revocation of certification, the 
applicant may request a hearing before the Board which will 
serve as the appeals hearing body. 

(b) Requests for an appeals hearing shall be made in writing 
to the President of the Board within 66 30 days upon receipt of 
the notification that certification had been denied or revoked. 

Authority G.S 90-113.30; 90-113.39; 90-113.40. 



14:16 



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Eebmary 15, 2000 



1464 



TEMPORARY RULES 



This Section includes temporary rules reviewed hy the Codifier of Rules and entered in the North Caroiina Administrative Code 
and includes, from time to time, a listing of temporary rules that have expired. See G.S. 150B-21 .1 and 26 NCAC 2C .0500 for 
adoption and filing requirements . Pursuant to G.S. 150B-2 Lite), publication of a temporaiy rule in the North Carolina Register 
serves as a notice of rule-making proceedings unless this notice has been previously published hy the agency. 



TITLE 10 - DEPARTMENT OF HEALTH & HUMAN 
SERVICES 

Rule-making Agency: Commission for MHIDDISAS 

Rule Citation: 10 NCAC 14V .3602. .3604 

Effective Date: Februaiy 7. 2000 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 122C-26: 143B-147; 21 
CFR Part S. 291.505: 21 CFR Part 1300 

Notice of Rule-making Proceedings was published in the 
Register on October 1. 1999. 

Instructions on How to Demand a Public Hearing ,4 demand 
for public hearing must be requested in writing within 15 days 
of this notice and addressed to Charlotte F. Hall. Division of 
MHDDSAS. 325 N. Salisbury St.. Albemarle Building. Suite 
1156. Raleigh. NC 27603-5906. 

Reason for Proposed Action: This amendment will require all 
licensed Outpatient Narcotic Addiction Treatment facilities, 
which dispense Methadone. LAAM. or any other 
pharmacological agent approved by the Food and Drug 
Administration for the treatment of narcotic addiction 
subsequent to November 1. 1998 to participate in a 
computerized Central Registry and a computerized Capacity 
Management and Waiting List Management System established 
by the NC State Authority for Narcotic Addiction Treatment. 

Comment Procedures: Comments should be submitted to 
Charlotte F. Hall. Division of Mental Health. Developmental 
Disabilities and Substance Abuse Services. 325 N. Salisbury 
Street. Albemarle Building. Suite 1156. Raleigh, NC 27603- 
5906. Comments must be received no later than March 16. 
2000. 

Fiscal Impact 
State Local Sub. None 

/ 

CHAPTER 14 MENTAL HEALTH: GENERAL 

SUBCHAPTER 14V - RULES FOR MENTAL HEALTH, 

DEVELOPMENTAL DISABILITIES. AND 

SUBSTANCE ABUSE FACILITIES AND SERVICES 

SECTION .3600 - OUTPATIENT NARCOTIC 



ADDICTION TREATMENT 

.3602 DEFINITIONS 

In addition to terms defined in G.S. 122C-3 and Rule .0103 of 
this Subchapter, the following definitions shall also apply: 

(1) "Capacity management system" is a computerized 
database, maintained at the Office ot' the Nonh 
Carolina state authority for governing treatment of 
narcotic addiction with a narcotic drug, which ensures 
timeh notification of the State whenever a program 
reaches 90 percent of its capacit\' to treat intravenous 
drug users, and to make any excess treatment capacity 
available. The requirement to have a capacity 
management system js referenced in 43 CFR Part 
9b. 126(a). the Substance Abuse Prevention and 
Treatment Block Grant. The referenced material shall 
include subsequent amendments and editions and may 
be obtained from the Substance Abuse Servies 
Section ot DMH/DD/SAS. 325 N, Salisbury Street. 
Albemarle Building. 1 1'" Floor, Raleigh. NC 27603- 
5906. The computerized system shall ensure that a 
continuous updated record ot all such reports is 
maintained and that excess capacity information shall 
be available to all other programs. 

(2) "Central registry" is a coinputerized patient database, 
maintained at the Office of the North Carolina state 
authority tor governing treatment of narcotic addiction 
with a narcotic drug. The purpose of the database is 
to prevent multiple methadone treatment program 
enrollments: thereb\ lessening the possibility of 
methadone diversion for illicit use. 

(3) "Waiting list management system" is a component of 
the capacity management system whereby systematic 
reporting ot' treatment demand is maintained. The 
data required for the waiting list management 
component of the capacity shall include a uniciue 
patient identifier for each intraveneous drug user 
seeking treatment, the date initial treatment was 
requested, and the date the drug user was removed 
from the waiting list. The vsaiting list management 
system requirement is referenced in 45 CFR 96. 1 26( c) 
and mcludes subsequent amendments and editions of 
the referenced material. It may be obtained from the 
Substance Abuse Servies Section of DMH/DD/SAS. 
325 N, Salisbur\ Street. Albemarle Building. 11'" 
Floor. Raleigh. NC 27603-5906. 

t-H(4) "Methadone" hydrochloride is a synthetic narcotic 
analgesic with multiple actions quantitatively similar 
to those of morphine, most prominent of which 
involves the central nervous system and organs 
composed of smooth muscle. The principal actions of 
therapeutic value or analgesia and sedation are 



1465 



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14:16 



TEMPORARY RULES 



detoxification or temporary maintenance in narcotic 
addiction. The methadone abstinence syndrome, 
although quantitatively similar to that of morphine 
differs in thai the onset is slower, the course more 
prolonged, and the symptoms are less severe. 
fJl i5j "Other medications approved for use in narcotic 
addiction treatment" means those medications 
approved by the Food and Drug Administration for 
use in narcotic addiction treatment and also approved 
for accepted medical uses under the North Carolina 
Controlled Substances Act. 

History Now: Authority G.S. 122C-2t>: I43B-147: 21 C.F.R. 

Part 2 ^ 291 .505: 21 C.F.R. Part 1300: 

Eff. May 1.199b: 

Temporary Amendment Eft. Fchniarx 7, 2000. 

.3604 OPERATIONS 

(a) Hours. Each facility shall operate seven days per week. 
12 months per year. Daily, weekend and holiday medication 
dispensing hours shall be scheduled to meet the needs of the 
client. 

(b) Compliance With FDA/NIDA Regulations. Each facility 
shall be approved by the Food and Drug Administration of the 
United State Department of Health and Human Services and 
shall be in compliance with all Food and Drug 
Administration/National Institute on Drug Abuse Narcotic 
Addiction Treatment regulations in 21 C.F.R. 291.503, 
incorporated by reference to include subsequent amendments 
and editions. These regulations are available from the Food and 
Drug Administration, 5600 Fishers Lane, Rockville, Maryland 
20857 at no cost. 

(c) Compliance With DEA Regulations. Each facility shall 
be currently registered with the Federal Drug Enforcement 
Administration and shall be in compliance with all Drug 
Enforcement Administration regulations pertaining to narcotic 
addiction treatment programs codified in 21 C.F.R.. Food and 
Drugs. Part 1300 to end, incorporated by reference to include 
subsequent amendments and editions. These regulations are 
available from the United States Government Printing Office. 
Washington. D.C. 20402 at a cost of four dollars and fifty cents 
($4.50) per copy. 

(d) Compliance With State Authority Regulations. Each 
facility shall be approved by the North Carolina State Authority 
for Narcotic Addiction Treatment. DMH/DD/SAS. 325 N. 
Salisbury Street. Raleigh, N.C. 2?6efVr 27603-5906. which is the 
"sl a te — au t hority" — a?^ — defined — m — the — Food — and — D r ug 
Adminis t ra ti on/Na t ional Ins t itu t e on D r ug Abuse Na r co t ic 
Addic t ion Treatmen t Regula t ions — in 21 — C.F.R. 291.505. 
incorpora t ed by refe r e nce t o include subsequent ame n dmen t s 
and edi t ions, and is t he agency designated by t he Go v e rn o r o r 
o t her appropria t e official person desitinated by the Secretary of 
Health and Human Services to exercise the responsibility and 
authority within the state or t erri t oiy for governing the treatment 
of narcotic addiction with a narcotic dr ug, drug, includine 
program approval, for monitoring compliance with Ihe 
regulations related to scope, staff, and operations, and for 
monilormg compliance with Section 1923 of P.L. 102-321. The 



referenced material may be obtained from the Food and Drug 
Administ r ation. Division of Scient i f i c Investigations. Regulatory 
Management — Branch. — 7520 — Standish — P lace. — Room — H-5; 
Rockville. Mao'land 20855 at no cost. Substance Abuse 
Services Section of DMH/DD/SAS, 325 R Salisbury Street. 
Albemarle Building. 11'" Floor. Raleigh. NC 27603-5906. 

(e) The State Authority shall base program approval on the 
following criteria: 

state and federal law and 



(1) 



compliance with 
regulations: 
compliance with al 



(2) compliance with all applicable standards of practice: 

(3) program structure for successful service delivery: and 

(4) impact on the delivery of narcotic addiction treatment 
services in the applicable population. 

tr)(f) Take-Home Supplies For Holidays. Take-home 
dosages of methadone for holidays shall be authorized by the 
facility physician on an individual client basis according to the 
following: 

( 1 ) An additional one-day supply of methadone may be 
dispensed to each eligible client ( regardless of time in 
treatment) for Independence Day. Thanksgiving. 
Christmas. New Year's and other official state 
holidays. 

(2) No more than a three-day supply of methadone may 
be dispensed to any eligible client because of 
holidays. This restriction shall not apply to a client 
who is receiving a six-day take-home supply of 
methadone. 

tfijQ.) Withdrawal From Medications For Use In Narcotic 
Addiction Treatment. The risks and benefits of withdrawal from 
methadone or other medications approved for use in narcotic 
addiction treatment shall be discussed with each client at the 
initiation of treatment and annually thereafter. 

ftr)(h) Random Testing. Random testing for alcohol and other 
drugs shall be conducted on active narcotic addiction treatment 
clients. 

Ht){\} Client Discharge Restrictions. No client shall be 
discharged from the facility while physically dependent upon 
methadone or other medications approved for use in narcotic 
addiction treatment unless the client is provided the opportunity 
to detoxify from the drug. 

(i) All licensed outpatient narcotic addiction facilities which 
dispense Methadone. LAAM. or any other pharmacological 
agent approved by the Food and Drug Administration for the 
treatment of narcotic addiction subsequent to November 1 . 1 998. 
are required to participate m a computerized Central Registry 
and a computerized Capacit\ Management and Waiting List 
Management System as established by the North Carolina State 
Authority for Narcotic Addiction Treatment. 

History Note: Authority G.S. 122C-26: I43B-I47: 21 C.F.R. 

Part 2 if 291.505: 

Eff.May I. 1996: 

Temvorarx Amendment Eff. Fehriiarx 7. 2000. 



TITLE 20 - DEPARTMENT OF STATE TREASURER 



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NORTH CAROLINA REGISTER 



Eehruary 15, 2000 



1466 



TEMPORARY RULES 



Rule-making Agency: State Treasurer 

Rule Citation: 20 NCAC 8 .0102. .0110 - .0112 

Effective Date: February 22, 2000 

Findings Reviewed by Julian Mann: Approved 

Authority for the rule-making: G.S. 1168-80 

Reason for Proposed Action: SL J 999-460 became ejf'ective on 
January 1. 2000 and makes e.xtensive changes to the law 
covering escheats and abandoned property. Several of the 
changes result in sufficient ambiguities to warrant the use of 
temporary rules to nuike it possible for those both Inside and 
outside the Department to fulfill the requirements under the law 
with the greatest fairness and efficiency. In preparing the rules 
we have followed any commentary available on the intent of the 
statute as written. 

Comment Procedures: Send all comments toAPA Coordinator, 
Departnwnt of State Treasurer, 325 North Salisbury Street, 
Raleigh, NC 27606-1385. 

CHAPTER 8 ESCHEATS AND ABANDONED 
PROPERTY 

SECTION .0100 - GENERAL AND ADMINISTRATION 

.0102 DEFINITIONS 

(a) The words defined in G.S. 1 16B--H)52 shall have the same 
meaning when used in this Chapter. 

(bittr) The following words and phrases defined in this Rule 
will have the meanings indicated when used in this Chapter. 
unless the context clearly requires another meaning: 

(JJ "Escheats" includes all property, real and personal, 
tangible and intangible which is subject to Chapter 
1 168 of the General Statutes. 

"Interest-bearing property" means property that 
accrues interest to the owner at a predetermined rate 
from the onset of the contract as ex plicitly provided in 
the contract. 
"Dividend-pavine property" means shares of 



i2l 



UJ 



ii] 
(3) 
161 



ownership issued by a corporation or an investment 
company registered under the Investment Company 
Act of 1941 or a master limited partnership which js 
treated as stock by a major security market in which it 
is bought and sold. 
"Checking account" means a non-interest-bearing 



account with a financial institution . 

"Savings account" means an interest-bearing account 

with a financial mstitution. 

"Date of claim" means the date on which a completed. 

signed, and notarized claim with all required 

documentation attached is received by the Departmeni 

from the party claiming ownership. 



History Note: Authority G.S. ll^B-80; 
Eff.Februaiy 1,1982: 
Amended Eff. November 1, 1988: 
Temporary Atnendment Eff. Febniarx 22, 2000. 

.0110 EARLY ESCHEATMENT 

(a) If remitted to the State Treasurer, property subject to the 
provisions of G.S. Chapter 1 168 but which has not been 
presumed abandoned under said statute will be returned to the 
holder unless the holder the holder has received in writing 
permission from the State Treasurer to remit the property prior 
to the date of presumed abandonment. 

(b) To request pennission to remit property to the State 
Treasurer before its presumed abandonment date, the holder 
must send a letter to the Escheat Officer requesting permission 
to remit the property prior to the date of presumed abandonment. 
The letter must clearly identify the nature and extent of the 
property to be remitted and the reasons for requesting permission 
to remit the property before its required payment date. 

(c) The State Treasurer does not expect to grant pennission 
unless its js clearly demonstrated that the early transfer of the 
property js for the benefit of tjie owner or of the State. 

Histoiy Note: Authoritx G.S. 116B-S0: ll6B-69(b): 
Tenworarx Adoption Eff. Februarx 22, 2000. 

.0111 REGISTRATION UNDER G.S. 116B+78(F) 

(a) Registration under G.S. 1 16B-78(f) shall be for a period 
of a calendar year. Unless the request states that the request is 
for a specified calendar year, the registration will be presumed 
to be for the current calendar year. 

(b) All requests to register must be submitted on the form 
supplied by the Department for that purpose. 

(c) Forms not accompanied by the required one hundred 
dollar ($100) fee will not be processed. 

Histoiy Note: Authority G.S. 1168-80: 116B-78(f); 
Temporarx Adoption Eff. Februarx 22, 2000. 

.01 12 INTEREST RATE DETERMINATION 

The interest rate charged under G.S.-l 16B-77(a) shall be at 
the rate established by the Secretary of Revenue pursuant to G.S. 
105-241.1(1). 

Hi.story Note: Authority G.S.I 168-80:1 168-77(a): 
Temporarx Adoption Eff Februarx 22, 2000. 



TITLE 25 - OFFICE OF STATE PERSONNEL 
Rule-making Agency: State Personnel Commission 
Rule Citation: 25 NCAC IC .0801 - .0813 
Effective Date: January 19. 2000 
Findings Reviewed by Beecher R. Gray: Approved 



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14:16 



TEMPORARY RULES 



Authority for the rule-making: G.S. 126-4: S.L. 199-328: 

Reason for Proposed Action: Pursuant to Executive Order No. 
l?5 andS.L. 1999-32S titc above referenced rules are proposed 
to he adopted as temporary rules. These rules would 
demonstrate the State's leadership in reducing ground-o:one 
and motor vehicles emissions through policies and guidelines. 
This program would allow employees to work from their homes 
instead of driving to the traditional office, and could he an 
essential part of a plan to control the growth in vehicle miles 
traveled, reduce gasoline consumed and air pollution emitted. 

Comment Procedures: Written comments may he suhnuttedto 
Delores A.Joyner. Office of State Personnel. 13.U Mail Service 
Center. Raleigh. North Carolina 27699-1331. 

CHAPTER 1 - OFFICE OF STATE PERSONNEL 

SUBCHAPTER IC - PERSONNEL ADMINISTRATION 

SECTION .0800 -- REQUIREMENTS FOR 
TELEWORKING PROGRAMS 

.0801 PURPOSE 

Pursuant to the mandate contained in S.L. 1999-328 to apply 
the best methods ot' personnel administration as evolved in 
business and industry, the Office ot State Personnel has 
established the foUowinii rules to provide guidance to aoencies 
in developing teleworking programs. Given the widespread use 
of teleworking programs in the private sector, and the increasing 
frequency of teleworking programs in the public sector, h is 
necessary that guidelines be established b^; the Office ot' State 
Personnel so that teleworking may be offered bv state agencies 
as a work options to ensure competitive advantages with other 
employers and to meet the environmental and budgetary 
challenges of the future as directed b\ the legislature and 
governor. 

Histon- Note: Authority- G.S. 126-4: S.L. 1999-328: 
Temporary- Adoption Eff. .lanuarx 19. 2000. 

.0802 COVERED EMPLOYEES 

Teleworking is available as a work option in every agency and 
for every type of appointment, including permanent, temporary, 
contract, or time limited and whether full time or part time. 
However, the decision whether to allow a position or an 
employee to tele\\ork js wholly within management discretion 
and is not appealable to the State Personnel Commission. 

Histoiy Note: Authority G.S. 126-4: S.L. 1999-328: 
Tetnporan- Adoption Eff'. Januan- 19. 2000. 

.0803 DEFINITIONS OF TERMS 

For purposes of this rule, the tenns below mean the following: 

( 1 ) Teleworking: a flexible work arrangement that allows 

an employee to work at home, on theroad. or from 

another satellite location for all or part ot their work 

week. If job responsibilities reuuire it. the teleworker 



may be connected to the regular work location via 
computer or may simply maintain contact via phone or 
fax. 

(2) Teleworker: an employee who performs all or pan of 
his job responsibilities away from the primar\' 
workstation pursuant to a teleworking arrangement. 

(3) Telecommutable Jobs: jobs, which have one or more 
responsibilities, which are location independent and 
measurable and could be performed from the primary 
workstation, home, or another work location. 

(4) Telework: those responsibilities which are performed 
from home or some other work location away from 
the primary workstation. 

Historx Note: Authority G.S. 126-4: S.L. 1999-328: 
Temporary Adoption Eff. January 19. 2000. 

.0804 OFFICE OF STATE PERSONNEL 
RESPONSIBILITIES 

The Office of State Personnel will administer an office to 
provide guidance to State agencies developing teleworking 
programs and to monitor the savings provided by such programs. 
The Office shall: 

(1 ) Provide coordination for the programs: 

Provide staff to the Teleworking Advisory 



12) 

ill 
14) 
13) 

I6i 



Committee: 

Conduct orientation for agency coordinators: 

Train agency coordinators: 

Review and approve any reports on the teleworking 

programs: and 

Compile, analyze, and report the impact of 

teleworking programs in the State report. 



Histoiy Note: Authority- G.S. 126-4: S.L. 1999-328: 
Temporary Adoption Eff. Janiiar\ 19, 2000. 

.0805 DESIGNATION OF TELEWORK JOBS AND 
TASKS 

Each agency shall establish general agency policies and 
procedures which provide for the definition of telecommutable 
jobs/tasks. 

( 1 > Each agency must identify jobs that are designated as 
telecommutable and be responsible for providing 
documentation, evaluation, and analysis to support the 
selection of these jobs. A job should not be 
considered for teleworking if other positions are 
negatively impacted. However, a job may be 
considered if the incumbent employee is able to: 

(a) Meet internal agency and client needs while 
teleworking: 

(b) Set clear work objectives, with timelines and 
clear expectations: 

(c) Control and schedule work flow: 

(d) Set clearly defined tasks for teleworking days: 

(e) Benefit from quiet or uninterrupted time: and 

(f) Schedule face-to-face meetings on specified 
days, to leave the other days free for 
teleyvorking. 



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February 15, 2000 



1468 



TEMPORARY RULES 



(2) Possible leleworking tasks may include but are not 
limited to the tollowino: Analysis, auditing reports, 
batch work, calculatintz. computer proaramminu. 
conductine business by phone, data entry, desiizn 
work, dictating, drafting;, editint;. eyaluations. field 
visits, graphics, maintaining data bases, preparing 
budgets, preparmg/monitoring contracts, project 
management, reading, record keeping, research, 
sending/receiving E-mail, spreadsheet analysis, 
typing, word processing, writing, etc. 

Historv Note: Authority G.S. 126-4: S.L. 1999-328: 
Tcmporarx Adoption Eff. Junuarx 19. 2000. 

.0806 DESIGNATION OF EXPECTED RESULTS OF 
TELEWORKING ARRANGEMENTS 

(a) Each agency shall establish agency policies and 
procedures that provide for the definition of expected results 
under a teleworking arrangement. 

(b) The agency shall follow the following guidelines when 
defining expected results of a teleworking arrangement: 

(1) Each agency shall establish measurable performance 
standards which are results-oriented and which 
describe quantity and quality of work. 

(2) Each employee selected for participation in the 
teleworking program will be expected to meet the 
established responsibilities of the position. 
Teleworking does not affect the established 
responsibilities of the position. 

(3) The manager, in approving the teleworking 
arrangement, js responsible for determining the 
expected results for the agreed upon work 
arrangement. These results should be discussed and 
agreed to bv the teleworker. supervisor, and manager 
prior to the dates for the teleworking and should be 
put in writing for the teleworker and the manager. 
The teleworker's direct supervisor should be involved 
m the decision process since an\ work done bv the 
teleworker must be within the framework of the 
current assignment. 

Histoiy Note: Authority G.S. 126-4: S.L. 1999-328; 
Temporary Adoption Eff. Januarx 19. 2000. 

.0807 DESIGNATION OF AN AGENCY 
TELEWORKING COORDINATOR 

Each participating agency will select an Agency Teleworking 
Coordinator to be responsible for overall program organization 
and analysis. The Agency Coordinator shall: 
( I ) Provide oversight for the agency 
program. 



teleworking 



(2) Arrange briefing to educate management about the 
teleworking program. The Office of State Personnel 
will provide a briefing about teleworkmg in general. 
if desired. 

(3) Work u'ith agency management to determine the 
parameters ot the agenc\ televvorking programs. 

(4) Distribute survey before telecommuting is 



implemented to participating supervisors and 
teleworkers to be completed and returned to the 
Agency Teleworking Coordinator prior to the training. 

(5) Provide training of tele worker/supervisor teams. 
During the training, teleworkers and their supervisors 
will develop the terms of the teleworking arrangment 
which will be in writing and signed by both the 
employee and the supervisors. 

(6) Meet with teleworkings participants in periodic focus 
groups to leam of their experiences and to address 
problems and suggest resolutions if necessary. 

(7) After a position has been designated teleworking for 
six months, issue a survey to supervisors, teleworkers 
and related non-teleworkers. 

(8) Meet with upper management to discuss survey 
results, recommend program revision, and identify 
program expansion opponunities within the agency. 

History Note: Authority G.S. 126-4: S.L. 1999-328: 
Temporary Adoption Eff. January 19, 2000. 

.0808 DESIGNATION OF EMPLOYEES FOR 
TELEWORK ARRANGEMENT 

Each participating agency will identify selection criteria for 
employees. Each agency has the authority to detennine which 
employees under its supervision meet the agency standard for 
selection. These standards, which are necessary for a successful 
teleworking arrangement, shall include that the employee: 

( 1 ) Is able to work independently: requires minimal 
supervision: 

(2) Requires minimal face-to-face interaction while 
teleworking: 

(3) Has a high level ot job knowledge and skill: 

(4) Is results oriented: comfortable setting priorities and 
deadline s: 

(5) Has demonstrated a high level of productivity: 

(6) Has a histon. of reliability: 

(7) Has a fuh understanding of the operations of the 
office and the specific requirements of the 
telecommutable job: 

(8) Keeps supervisor infonned of progress and/or 
problems: 

(9) Knows who can make what decisions; 

(10) Trusts the supervisor: 

(11) Functions at good or above level; 

(12) Has a safe and adequate work site free from 
interruptions and secure: 

(13) Prefers the home environment at least some of the 
time: and 

( 14) Understands that teleworking is a work option granted 
by management: and is willing to sign a written 
summary of the tenns of teleworking arrangement. 

Histoiy Note: Authority G.S. 126-4: S.L. 1999-328; 
Temporary Adoption Eff. .lanuary 19. 2000. 

.0809 DESIGNATION OF EMPLOYEES FOR 
TELEWORK ARRANGEMENT 



7^69 



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14:16 



TEMPORARY RULES 



Each participating agency will identify selection criteria tor 
supervisors. Each agency has the aulhority to determine which 
employees under [ts supervision meet the agenc\' standard tor 
selection. These standards, whicii are necessary tor a successful 
teleworking arrangement, shall include that the supervisor: 



Trusts employees to do their jobs without constant 

face-to-face supervision: 

Has a results-oriented management style and 

establishes clear, measurable objectives and desired 

results; 

Is tiexible. allowing new approaches and solutions. 

and is open lo ideas from employees; 

Keeps an open, positive attitude toward teleworking; 



m 
ill 

ii) 

14) 

(5) Provides timely and constructive feedback; and 

(6) Facilitates open communication among the members 
of the team, including the supervisor, teleworker. co- 
workers and support staff. 

History Note: Authority G.S. 126-4: S.L. 1999-328: 
TcmiMvarx Adoption Eff. Jamiarx 19, 2000. 

.0810 DESIGNATION OF EMPLOYEES FOR 
TELEWORK ARRANGEMENT 

Each participating agency will provide for the orientation and 
training of all teleworkers and supervisors. All participants in a 
teleworking arrangement will attend orientation and training 
sessions provided by the Slate and the agency. The orientation 
sessions will introduce them to teleworking and instruct them on 
factors that will assure the success of this effort. Training will 



be provided to enhance the teleworking experience by preparing 
teleworkers and supervisors to discern and resolve the key issues 
which may be involved in their new working relationship. 

History Note: Authont}- G.S. 126-4: S.L. 1999-328: 
Temporary Adoption Eff'. Januarx 19, 2000. 

.081 1 TERMS OF AGENCY TELEWORKING 
POLICY OR GUIDELINES 

Each agency shall develop a policy or set of guidelines, which 
are reflective of agency-specific policies and include them, in 



addition lo the State policies. An agency's teleworking policy 
will address these areas, m addition to any areas which are of 
specific concern to the agency: 

( 1 ) Management Option ; Offering the opportunity to 
work at home is a management option: teleworking is 
not a universal employee benefit. Any teleworking 
situation js voluntarx for the employee and at the 
discretion of managemeni and/or the employee's 
supervisor. 

(2) Conditions of Employment i The teleworker's 
conditions cU employment with the State remain the 
same as for non-teleworking employees. 

(3) Salaries ; Benefits, leaves and state sponsored 
insurance will not change as a result of teleworking . 

(4) Safet\ and Liability ^ Since the employee's home 
work space js an extension of the agency work space. 
the State's liability for job-related accidents will 
continue to exist during the employee's approved 



work hours and the employee's designated work 
location. It is the employee's responsibility to 
maintain a safe, ergonomicallv correct home 
workplace. The agency should be satisfied that the 
employee's home work site conforms to its safety 
standards. This may include inspections by the 
agency of the employee's home work site as 
necessary. The agency's teleworking policy should 
also consider issues such as insurance coverage of 
equipment located away from the office. 

(5) Office Supplies - Office supplies will be provided by 
the State and should be obtained during the 
teleworker's in-office work period. Oul-of-pocket 
expenses for supplies normally available in the office 
will not be reimbursed. The State will not provide 
office furniture. 

(6) Security - To insure hardware and software security, 
all software used for teleworking must be approved by 
the supervisor and manager before installation. 
Restricted-access or confidential information shall not 
be taken out of the office or accessed through the 
computer unless approved in the teleworking 
agreement. 

(7) Work Hours - The teleworking agreement shall 
establish working hours. Any existing policies 
covering flexible hours can be extended to 
teleworkers. Any changes to the employee's 
approved work hours shall be reviewed and approved 
by the supervisor and manager m advance. While 
teleworking, the employee should stay reasonably 
available via telephone during agreed-upon work 
hours. 

(8) Equipment and Software- The agency's teleworking 
policy or the individual teleworking arrangemeniment 
shall define what equipment/software, if any, will be 
provided by the Stale, and how this will be 
determined. The agenc\' policy or tlie individual 
teleworking arrangement shall define liability, 
technical support availability and the procedure for 
servicing equipment. ]t should also specify any 
requirements for number of phone lines, voice mail, 
business lines and address long distance calls. If the 
teleworker supplies the equipment/sofmare. the State 
does not assume liability for loss, damage or wear 
unless otherwise agreed to in writing. Any State 
equipment/software used in the home office ma\ not 
be used for personal pumoses. and must be returned 
immediately u pon lerminalion of the teleworking 
agreement. 

(9) Dependent Care - Teleworking is not a substitute for 
dependent care. The teleworking arrangmenl shall 
define expectations regarding care of dependents on 
teleworking days. It should be noled that having a 
dependent jji the home while teleworking on any 
given occasion ma\ or may not affect an emplovee's 
ability to work, but the expectations regarding the 
presence of dependents shall be clearly addressed in 
the agency polic\ or the individual teleworking 



14:16 



NORTH CAROLINA REGISTER 



Eehruary 15, 2000 



1470 



TEMPORARY RULES 



arrangement. 

(10) Measures - All teleworkers and their supervisors shall 
participate in studies and surveys when necessary to 
evaluate the effectiveness and efficiency of the 
teleworking program. 

(1 1) Training ; All potential teleworkers and their 
supervisors shall attend a training session covering the 
State's and agency's teleworking policies, as well as 
the benefits and drawbacks of teleworking. This 
training shall take place prior to the implementation of 
a teleworking agreement. 

History Note: Autlwrin- G.S. 126-4: S.L. 1999-328: 
Teniporarx Adoption Eff. Jaiuian' 19. 2000. 

.0812 DESIGNATION OF TERMS OF 

TELEWORKING ARRANGEMENTS 

All teleworking arrangements shall memorialize in writing the 
mutual teleworking responsibilities ot the participants in the 
arrangement. Each participant in a teleworking arrangment. 
employees, supervisors and managers, must sign the document 
which contains the terms of the teleworking arrangement. At a employee entitlement or right, termination of employees from a 



arrangement; and , 
(d) Participate in surveys and focus groups. 
(2) Supervisors participating in a teleworking 
arrangement shall: 

(a) Attend orientation sessions for managers and 
supervisors; 

(b) Establish clear and measurable performance 
standards; 

(c) Attend training sessions: 

(d) Abide by a Teleworking Agreement; and 

(e) Participate in surveys, focus groups, and 
evaluation. 

History Note: Authority G.S. 126-4: S.L. 1999-328: 
Temporan' Adoption Eff. Jamtarx 19, 2000. 

.0813 CANCELLATION OF TELEWORKING 
ARRANGEMENT 

(a) Due to the voluntary nature of the program, teleworkers 
and/or management have the right to terminate the teleworking 
arrangement at any time. Although teleworking is not an 



minimum, the document shall define the parameters of the 
teleworking arrangement and shall include and address all policy 
areas listed in 2? NCAC 1 H .08 1 1 



(1) 



Employees participating in a teleworking arrangement 

shall agree to: 

(a) Be evaluated according to clear and measurable 

lb) 



M 



perfonnance standards; 

Attend training; 

Abide by written summary of the teleworking 



teleworking program must be done in writing and with 
appropriate notice except in emergency situations. 

(b) Temtination of a teleworking arrangement by management 
is not a grievable issue under personnel policies. An employee 
who terminates a teleworking arrangement cannot be subjected 
to disciplinary action. 

Histoiy Note: Aiitliority G.S. 126-4: S.L. 1999-328: 
Temporarx Adoption Eff. January 19, 2000. 



1471 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



RULES REVIEW COMMISSION 



This Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. February 17. 2000. 
10:00 a.m. . at 1307 Gienwood Ave.. Assembly Room, Raleigh. NC. Anyone wishing to submit written comment on any rule 
before the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by 
Friday. February 1 1, 2000, at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Reyiew 
Commission at 419-7.33-2721. Anyone wishing to address the Commission should notify the RRC staff and the agency at 
least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood. Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

David Twiddv 



Appointed by House 

Paul Powell. Chairman 

Walter Futch 

Jennie J. Hayman 

George Robinson 

R. Palmer Suce 



RULES REVIEW COMMISSION MEETING DATES 

February 17.2000 
March 16.2000 
April 13.2000 



LOG OF FILINGS 
RULES SUBMITTED: DECEMBER 20, 1999 THROUGH JANUARY 20. 1999 



agency/division 



RULE NAME 



RULE CITATION 



ACTION 



DEPARTMENT OF COMMERCE/COMMERCE FINANCE CENTER 

Background and Objectives 4 NCAC II .0101 

Definitions 4 NCAC II .0102 

Date of Receipt of Applications 4 NCAC II .0201 

Application Categories and Requirements 4 NCAC II .0202 
Review of Applications and Funding 4 NCAC II .0301 

Eligibility Requirements 4 NCAC 1 1 .0302 

Review: APP Funding 4 NCAC II .0303 

Eligibility Requirements 4 NCAC II .0304 

General 4 NCAC 11.0401 

Required Findings 4 NCAC II .0402 

Fomial Applications Procedures: Denial 4 NCAC II .0403 
Fomial Application Procedures: Approval 4 NCAC II .0404 
Findings Requirements 4 NCAC II .0405 

General 4 NCAC 11.0501 

Limitations 4 NCAC II .0502 

Reversion of Funds 4 NCAC 1 1 .0503 

Reporting Requirements 4 NCAC II .0601 

Annual Designation 4 NCAC II .0701 

Compliance with NC Environmental Rules 4 NCAC II .0801 
DEPARTMENT OF INSURANCE/MANUFACTURED HOUSING BOARD 

II NCAC 8. 1 103 
II NCAC 8. 1106 
II NCAC 8 .1107 
11 NCAC 8. 1 1 16 



Purpose and Scope 
Structural Components 
Exterior 
Code of Ethics 

DENR/ENVIRONMENTAL MANAGEMENT COMMISSION 

Consideration for Federally-Listed 
Threatened Spec 



15 NCAC 2B .0110 



Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Repeal 
Repeal 
Repeal 
Amend 
Amend 
Amend 
Repeal 
Amend 
Amend 
Amend 
Repeal 
.Amend 
Adopt 

Amend 
Amend 
Amend 
Amend 



Adopt 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1472 



RULES REVIEW COMMISSION 



Fresh Water Quality Standards 


15NCAC2B.0211 


.. Amend 


Tidal Salt Water Quality Standards 


15NCAC2B.0220 


Amend 


Nutrient Sensitive Waters 


15NCAC2B.0223 


Amend 


Outstanding Resource Waters 


15NCAC2B.0225 


Amend 


DENR/SEDIMENTATION CONTROL COMMISSION 






Plan Approval Fees 


15NCAC4B.0126 


Amend 


DENR/COMMISSION FOR HEALTH SERVICES 






Grades of Certification 


13NCAC18D.0201 


Amend 


Determination of Various Classes of 






Certification 


15NCAC 18D.0203 


Amend 


Classification of Water Treatment 






Facilities 


15NCAC 18D.0205 


Amend 


Certified Operator Required 


15NCAC 18D.()2()6 


Amend 


Fee Schedules 


15NCAC 18D.03()4 


Amend 


Waiting Period 


15NCAC 18D.0305 


Repeal 


Revocation of Certificate 


15NCAC 18D.0307 


Amend 


Professional Growth Hours 


15NCAC18D.0308 


Amend 


Certification Reinstatement 


15NCAC 18D.0309 


Amend 


Issuance of Grade Certificate 


15NCAC 18D.0403 


Amend 


Operator in Responsible Charge 


15NCAC 18D.0701 


Amend 


REVENUE, DEPARTMENT OF 






Transfer Fee 


17NCAC4B .0102 


Repeal 


Refunds 


17NCAC4B.0104 


Repeal 


Churches or Charitable Organizations 


17NCAC4B .0105 


Repeal 


Ceded Areas 


17NCAC4B .0106 


Repeal 


Blind Persons 


17NCAC4B.0107 


Repeal 


Not Prorated 


17NCAC4B .0301 


Repeal 


Computation and Payment of Amusement 






Gross Receipt 


17NCAC4B.0302 


Amend 


Civic Organization Amusements 


17NCAC4B.0306 


Ainend 


Drag Strips and Go-Cart Races 


17NCAC4B.0308 


Amend 


Go-Cart Races 


17NCAC4B.0309 


Repeal 


Fishing Piers 


17NCAC4B.0310 


Amend 


Horse and Dog Shows 


17NCAC4B.0311 


Amend 


Rattlesnake Milkings 


17NCAC4B.0312 


Amend 


Report of Gross Receipts Tax 


17NCAC4B.0403 


Repeal 


Expected Contribution 


17NCAC4B.0405 


Repeal 


Liability for Direct Loans 


17NCAC4B.2902 


Amend 


Quarterly Return 


17NCAC4B.2903 


Amend 


Application for Privilege License 


17NCAC4B.4301 


Repeal 


Privilege License 


17NCAC4B.4302 


Repeal 


Application for License 


17NCAC4E.0102 


Repeal 


Penalty 


17NCAC4E.0103 


Repeal 


Filing of Monthly Reports 


17NCAC4E.0201 


Amend 


Examiner's Report 


17NCAC4E.0202 


Repeal 


Separate Reports for Wines 


17NCAC4E.0203 


Repeal 


Spoilage of Taxpaid Beer or Wine 


17NCAC4E.0302 


Amend 


Questionnaires 


17NCAC4E.0703 


Amend 


Issuance of Stamps 


17NCAC4F.0001 


Repeal 


Denomination of Stamps 


1 7 NCAC 4F .0002 


Repeal 


Cost of Stamps 


17NCAC4F.0003 


Repeal 


Postage Paid 


1 7 NCAC 4F .0004 


Repeal 


Conveyance Tax Report 


1 7 NCAC 4F .0005 


Repeal 


Reproduced Copies 


17 NCAC 6B .0105 


Repeal 


Erroneous Information 


17 NCAC 7B .0124 


Repeal 


Flea Markets 


J7 NCAC 7B .0125 


Repeal 


Electricity. Piped Natural Gas, and Other 






Fuel 


17NCAC17B.2101 


Amend 



1473 



NORTH CAROLINA REGISTER 



February 75. 2000 



14:16 



RULES REVIEW COMMISSION 



Records of Exempt Sales 17 NC AC 9K .060 1 

TRANSPORTATION, DEPARTMENT OF/DIVISION OF HIGHWAYS 

Definitions for Outdoor Advertising 

Control 

Agreement 

Applications 

Fees and Renewals 

Pemiit and Permit Emblem 

Transfer of Permit/Change of Address 

Revocation of Permit 

Notice Given for Refusing to Issue Permit 

Notice Given for Revoking Permit 

Appeal of Decision of District Engineer 

Standards for Directional Signs 

Permits for Directional Signs 

Scenic Byways 

Repair/lVIainienance/Alteration of Signs 

Order to Stop Work 

Issuance or Denial of Pemiit 

Conditions of Permit 
STATE BOARDS/NC LICENSING BOARD FOR GENERAL CONTRACTORS 

Classification 

Eligibility 

Filing Deadline/App Seeking Qual 

Application 

Notice of Approval 

Subject Matter 

Examination Schedule 

Failing Examination 

Definitions 

Homeowners Recover)' Fund Hearing 
STATE BOARDS/REAL ESTATE COMMISSION, BOARD OF 

Proof of Licensure 

Agency Agreements and Disclosures 

Advertising 

Delivery of Instruments 

Handling and Accounting of Funds 

Brokerage Fees and Compensation 

Broker-in-Charge 

Drafting Legal Instruments 

Offers and Sales Contracts 

Reporting Criminal Convictions 

Res.Properety Disclosure Statement 

Form 

Filing and Fees 

Payment of Application Fees 

Experience Qualifications for Applicants 

Time and Place for Examinations 

Subject Matter and Passing Scores 

Re-Applying for Examination 

Cheating and Related Misconduct 

Examination Review 

Character 

Business Entities 

License Renewal 

Active and Inactive License Status 

Reinstatement of Expired License 

Salesperson to be Supervised by Broker 



Repeal 



19NCAC2E.0201 


Amend 


19 NCAC 2E .0202 


Amend 


19NCAC2E.0206 


Amend 


19 NCAC 2E .0207 


Amend 


19 NCAC 2E .0208 


Amend 


19 NCAC 2E .0209 


Amend 


19 NCAC 2E .0210 


Amend 


1 9 NCAC 2E .02 11 


Amend 


19 NCAC 2E .0212 


Amend 


19 NCAC 2E .0213 


Amend 


19 NCAC 2E .02 14 


Amend 


19 NCAC 2E .0215 


Amend 


19 NCAC 2E .0224 


Adopt 


19 NCAC 2E .0225 


Adopt 


19 NCAC 2E .0226 


Adopt 


19 NCAC 2E .0603 


Amend 


19 NCAC 2 E .0604 


Amend 


21 NCAC 12 .0202 


Amend 


21 NCAC 12.0204 


.'Vmend 


21 NCAC 12.0205 


Amend 


21 NCAC 12.0209 


Adopt 


21 NCAC 12.0307 


Repeal 


21 NCAC 12.0402 


Amend 


21 NCAC 12.0405 


Amend 


21 NCAC 12.0410 


Amend 


21 NCAC 12.0901 


Amend 


21 NCAC 12.0907 


Amend 


21 NCAC 58 A .0101 


Amend 


21 NCAC 58 A .0104 


Amend 


21 NCAC 58 A .0105 


Amend 


21 NCAC 58 A .0106 


Amend 


21 NCAC 58A .0107 


Amend 


21 NCAC 58 A .0109 


Amend 


21 NCAC58A.0110 


Amend 


21 NCAC58A.()111 


Amend 


21 NCAC58A.0112 


Amend 


21 NCAC 58A .01 13 


Amend 


21 NCAC58A.0114 


Amend 


21 NCAC 58 A .0301 


Amend 


21 NCAC 58A .0302 


Amend 


2 1 NCAC 58A .0303 


Amend 


21 NCAC 58A .0304 


Amend 


21 NCAC 58 A .0401 


Amend 


21 NCAC 58 A .0402 


Amend 


21 NCAC 58A .0403 


Amend 


21 NCAC58A .0404 


Amend 


21 NCAC 58 A .0406 


Amend 


21 NCAC 58A .0501 


Amend 


21 NCAC 58A .0502 


.Amend 


21 NCAC 58 A .0503 


Amend 


21 NCAC 58 A .0504 


Amend 


21 NCAC 58A .0505 


Amend 


21 NCAC 58 A .0506 


Amend 



14:16 



NORTH CAROLINA REGISTER 



Eebruary 15, 2000 



1474 



RVLES REVIEW COMMISSION 



Cancellation of Salesperson License 

Complaints/Inquiries/Motions 

Subpoenas 

Presiding Officer 

Settlements 

Requests for Rulings 

Multiple Claims 

Purpose and Applicability 

Continuing Education Requirement 

Continuing Education for License 

Activation 

Equivalent Credit 

Extension of Time 

Continuing Education Required 

Application for Registration 

Registration Fee 

Amendments to Time Share 

Genera! Provisions 

Public Offering Statement 

Receipt for Public Offering Statement 

Proof of Cancellation 

Retention of Time Share Records 

Time Share Trust Funds 

Duties of the Project Broker 

Withdrawal or Denial of Approval 

Program Changes 

Use of Examination Performance Data 

Student Evaluations of Instructor 

Performance 

Facilities and Equipment 

Perfomiance Bond 

Advertising and Recruitment Activities 

License Renewal and Fees 

License Exam Confidentiality 

Student Evaluations 

Program Structuring 

Course Completion Standards 

Course Scheduling 

Textbooks 

Real Estate Instructors 

Course Records 

Exception for Persons with Disabilities 

Purpose and Applicability 

Nature and Scope of Instructor Approval 

Application and Criteria 

Instructor Performance 

Requests for Examinations and 

Videotapes 

Broker Course Reports 

Expiration and Renewal 

Denial or Withdrawal of Approval 

Update Course Component 

Nature and Scope of Approval 

Renewal of Approval 

Denial or Withdrawal of Approval 

Elective Course Component 

Criteria for Elective Course Approval 

Distance Education Courses 



21 NCAC58A 


.0510 


.Amend 


21NCAC58A 


.0601 


Amend 


21 NCAC58A 


.0610 


Amend 


21NCAC58A 


.0612 


Amend 


21 NCAC 58A 


.0615 


Amend 


21 NCAC 58 A 


.0902 


Amend 


21 NCAC 58 A 


.1402 


Amend 


21 NCAC58A 


.1701 


Amend 


21 NCAC 58 A 


.1702 


Amend 


21 NCAC58A 


.1703 


Amend 


21 NCAC58A 


.1708 


Amend 


21 NCAC 58 A 


.1709 


Amend 


21 NCAC58A 


.1711 


Amend 


21 NCAC58B 


.0101 


Amend 


21 NCAC58B 


.0102 


Amend 


21 NCAC58B 


.0104 


Amend 


21 NCAC 58B 


.0201 


Amend 


21 NCAC58B 


.0202 


Amend 


21 NCAC58B 


.0203 


Amend 


21 NCAC58B 


.0301 


Amend 


21 NCAC58B 


.0401 


Amend 


21 NCAC58B 


.0501 


Amend 


21 NCAC58B 


.0602 


Amend 


21 NCAC58C 


.0105 


Amend 


21 NCAC58C 


.0106 


Amend 


21 NCAC58C 


.0107 


Amend 


21 NCAC58C 


.0108 


Amend 


21NCAC58C 


.0207 


Amend 


21NCAC58C 


.0213 


Amend 


21 NCAC58C 


.0214 


Amend 


21NCAC58C 


.0217 


Amend 


21 NCAC58C 


.0218 


Amend 


21 NCAC58C 


.0220 


Amend 


21 NCAC58C 


.0302 


Amend 


21 NCAC58C 


.0304 


Amend 


21 NCAC58C 


.0305 


Amend 


21 NCAC58C 


.0306 


Amend 


21 NCAC58C 


.0307 


Amend 


21 NCAC58C 


.0310 


Amend 


21 NCAC58C 


.0312 


Amend 


21 NCAC58C 


.0601 


Adopt 


21 NCAC58C 


.0602 


Adopt 


21 NCAC58C 


.0603 


Adopt 


21NCAC58C 


.0604 


Adopt 


21 NCAC58C 


.0605 


Adopt 


21NCAC58C 


.0606 


Adopt 


21 NCAC58C 


.0607 


Adopt 


21 NCAC58C 


.0608 


Adopt 


21NCAC58E 


.0102 


Amend 


21 NCAC58E 


.0202 


Amend 


21 NCAC58E 


.0204 


Amend 


21 NCAC58E 


.0205 


Amend 


.21 NCAC58E 


.0302 


Amend 


21 NCAC58E 


.0304 


Amend 


21 NCAC58E 


.0310 


Amend 



1475 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



RULES REVIEW COMMISSION 



Course Completion Reporting 
Denial or Withdrawal of Approval 
Student Participation Standards 
Accommodations tor Persons with 
Disabilities 
OFFICE OF ADMINISTRATIVE HEARINGS 

Location 
Cost tor Copies 
Original and Duplicate Copy 
Electronic Version 
General Format Instructions 
Availability ot the North Carolina Register 
Publication of Notice of Text 
Submission for Permanent Rule Form 
General 
Secure Leave Periods for Attomevs 



21 NCAC58E.0406 


Amend 


21 NCAC58E.04I2 


Amend 


21 NCAC58E.03II 


Amend 


21 NCAC58E.0515 


Amend 


26NCAC 1 .0101 


Amend 


26NCAC 1 .0103 


Amend 


26NCAC2C.OI03 


Amend 


26NCAC2C.0I05 


Amend 


26NCAC2C.0108 


Amend 


26 NCAC 2C .0303 


Amend 


26 NCAC 2C .0306 


Amend 


26 NCAC 2C .0403 


Amend 


26 NCAC 3 .0101 


Amend 


26 NCAC 3 .01 ly 


Adopt 



RULES REVIEW COMMISSION 

January 20, 2000 
MINUTES 

TTie Rules Review Commission met on January 20, 2000. in the Assembly Room of the Methodist Building. 1 307 Glenwood Avenue, 
Raleigh, North Carolina. Commissioners in attendance were Chairman Teresa Smallwood, Jennie J. Hayman, Walter Futch, Palmer 
Sugg. John Arrowood. and George Robinson. 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan. Rules Review Specialist: and Sandy Webster. 

The following people attended: 



Ben Massey 
Marge Howell 
Becky Brown 
Dedra Alston 
Tom West 
Leslie Bevacqua 
Butch Gunnells 
Joy Mayo 
Man,' Shuping 
Jessica Gill 
Bill Crowell 
Jerr> Perkins 
Thomas Allen 
Ryke Longest 
Henry Jones 
Perri Morgan 
Harry Payne 
Angela Waldorf 
Ronald Raxter 
Phil Kirk 
Julie Campbell 
Patricia Smith 
John Runkle 
Meme Jo Alcoke 
Jeff Manning 
Lin Xu 
Rich Gannon 



N C Board of Physical Therapy Examiners 

LABOR 

LABOR 

DENR 

Poyner and Spruill 

N C Citizens for Business & Industry 

N C Soft Drink Association 

Womble Carlyle 

Legislative Research 

DENR/Coastal Management 

DENR/Coastal Management 

DENR/DWS 

DENR/DAQ 

Attorney General 

Attorney 

National Federation Individual Business 

LABOR 

LABOR 

Sanford Holshouser 

NCCBI 

NCCBI 

Freedom Newspapers 

Conservation Council of NC 

Attorney General 

DENR/DWQ 

DENR/DWQ 

DENR/DWQ 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1476 



RULES REVIEW COMMISSION 



James Rosich DENR/DCM 

Robert Willett News and Observer 

John Wagner News and Observer 

APPROVAL OF MINUTES 

The meeting was called to order at 10:30 a.m. with Chairman Small wood presiding. She asked for any discussion, comments, or 
corrections concerning the minutes of the December 1 6, 1999 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

2 NCAC 52B .0207 and .0302: AGRICULTURE/Board of Agriculture The rewritten rules submitted by the agency were approved 
by the Commission. 

2 NCAC 52E .0209: AGRICULTURE/Board of Agriculture The rewritten aile submitted by the agency was approved by the 
Commission. 

4 NCAC 15 .0120 and .0121: COMMERCE/Cape Fear River Navigation & Pilotage Commission Rule .0120 was returned to the 
agency at its request and the Commission objected to the rewritten rule for .0121 due to ambiguity. In (f), it is not clear what 
constitutes "just cause" to end an apprenticeship. This objection applies to existing language in the rule. Commissioner Arrowood 
voted not to object. 

10 NCAC 3R .0212: DHHS/Division of Facihty Services The rewritten rule submitted by the agency was approved by the 
Commission. 

10 NCAC 3U .0102 and .2510: DHHS/Child Care Commission The Commission received no response from the agency on 
these rules. 

1 3 NCAC 7F .0601 . .0602, .0603, .0604. .0605, and .0606: DEPARTMENT OF LABOR Commissioner Payne was heard on 
the objections due to lack of statutory authority. Commissioner Hayman recused herself from these rules. No motion was made, 
and no action was taken on these rules. 

15A NCAC IJ .0402, .0504. .0604, .0701, and .0903: DENR The rewritten rules submitted by the agency were approved by 
the Commission. 

15A NCAC IL .0503, .0604, .0701. and .1003: DENR - Tlie rewritten rules submitted by the agency were approved by the 
Commission. 

15A NCAC 31 .0106: DENR/Marine Fisheries Commission - The rewritten rule submitted by the agency was approved by the 
Commission. 

13A NCAC 30 .0101 and .0104: DENR/Marine Fisheries Commission - The rewritten rules submitted by the agency were approved 
by the Commission. 

15A NCAC 7H .0209: DENR/Coastal Resources Commission - The rewritten rule submitted by the agency was approved by the 
Commission. 

15A NCAC 16A .1 104 DHHS/Commission for Health Services The rewritten rule submitted by the agency was approved by the 
Commission. 

21 NCAC 1 .0101: N C Acupuncture Licensing Board No response was received from the agency. 

LOG OF FILINGS 

Chairman Smallwood presided over the review of the log and all rules were approved with the following exceptions: 

7 NCAC4S .0101 . .0102. .0104. .0105. .0106. .0107. .0108. and .01 10: CULTURAL RESOURCES/Histoncal Comiiussion These 
rules were withdrawn by the agency as they were filed by the wrong agency. 



7477 NORTH CAROLINA REGISTER February 15,2000 14:16 



RULES REVIEW COMMISSION 



7 NCAC 4S .0 1 09: CULTURAL RESOURCES/Tryon Palace Commission This rule was withdrawn by the agency as it was filed 
by the wrong agency. 

15A NCAC 2B .0225: DENR/Environmental Management Commission The Commission objected to this rule due to ambiguiry. 
In (a)( 1 ). it is not clear what constitutes "significant" impacts from pollution. In (c)(2). it is not clear what constitutes "significant" 
shellfish or submerged acquatic vegetation bed resources. In (e){4)(C)(iv) and (e)(9)(B)(iv). it is not clear what effluent liinitations 
will be considered "appropriate." This objection applies to existing language in the rule. 

15A NCAC 2B .0233: DENR/Environmental Management Commission Commissioner Sugg recused himself from this rule. 

ISA NCAC 28 .0241: DENR/Environmental Management Commission - The Commission objected to this rule due to ambiguity. 
In (b)(1)(A). it is not clear what makes scale maps "appropriate." In (b)(lKD). it is not clear what remedies and actions are 
"appropriate." In (b)(3), it is not clear what is meant by "adequately" enforce. In (g). it is not clear what is meant by "adequately" 
implemented and enforced. Commissioner Sugg recused himself from this rule. Commissioners Futch and Robinson voted against 
this motion. 

15A NCAC 28 .0242: DENR/Environmental Management Commission - The Commission objected to this rule due to lack of 
statutory authority and ambiguity. The report that the agency attempts to incorporate by reference in (4) is not material which can be 
incorporated by reference. There is no authority to reference the zones not established by rule. In (8)(c)(ix). it is not clear what is 
meant by "cultural or historic resources." In (8)(c)(xii). it is not clear what is meant by the Division shall "consider" whether the 
property is adjacent to or includes the listed items. It is not clear if the presence of the items will cause the property to be rejected 
or work towards its acceptance. It is also not clear what these items have to do with nitrogen removal. The ambiguity in this item 
also causes (8)(d)(i) to be ambiguous. In (9)(f). it is not clear what temis of a perpetual conservation easement will be acceptable to 
the Division. Commissioner Sugg recused himself from this rule. 

1 5A NCAC 28 .0259: DENR/Environmental Management Commission Commissioner Futch made a motion to object to this rule. 
The motion died for lack of a second. 

1 5A NCAC 28 .0260: DENR/ Environmental Management Commission - The Commission objected to this rule due to ambiguity. 
In (8)(c)(ix). it is not clear what is meant by "cultural or historic resources." In (9)(f), it is not clear what terms of a perpetual 
conservation easement will be acceptable to the Division. Commissioner Futch voted against the motion. 

15ANCAC2B .0261: Environmental Management Commission -The Commission objected to this rule due to ambiguity. In( 1 )(a)(i), 
it is not clear what makes scale maps appropriate. In ( 1 )(a)(iv). it is not clear what "remedies and actions" are appropriate. In ( 1 )(c), 
it is not clear what is meant by "adequately" enforce. In (6). it is not clear what is meant by "adequately" implemented and enforced. 

15A NCAC 2D .1207: DENR/Environmental Management Commission - The Commission objected to this rule due to ambiguity. 
In (c). it is not clear what is meant by "reasonable precautions." It is not clear if it may mean more than the items listed in ( I ) (3). 
In (d). it is not clear what standards the Commission considers "acceptable" for a method and schedule for reporting ambient 
particulate concentrations. 

15A NCAC 2Q .0103: DENR/Environmental Management Commission The Commission objected to this rule due to ambiguity. 
In (20), it is not clear how much is a "substantial" penalty. 

ISA NCAC 2Q .0508: DENR/Environmental Management Commission - The Commission objected to this rule due to ambiguity. 
In (f)(2)(C), it is not clear what standards the director is to use in approving forms. In the last sentence in (f). it is not clear when it 
is appropriate for records to be maintained in computerized fomi. This objection applies to existing language in the rule. 

ISA NCAC 2Q .0702: DENR/Environmental Management Commission - The Commission objected to this rule due to ambiguity. 
In (a)( 13). it is not clear what agronomic practices are acceptable to the Commission (EMC). In (a)(22)( A) and (8). it is not clear 
what is meant by "small" electric motor bum-out and bake-out ovens. This objection applies to existing language in the rule. 

ISA NCAC 7.1 .0406: DENR/Coastal Resources Commission - The Commission objected to this rule due to lack of statutory 
authority. Paragraph (c) represents a legal conclusion that may or may not be a correct statement of the law. However it seems that 
w hether or not a permit may be transferred by levy or judicial sale is for a court to conclude, not the agency. No statutoPi' or other 
authority is cited to indicate that the agency has the right to make such a determination. 

ISA NCAC 7M .0307: DENR/Coastal Resources Commission - The Commission objected to this rule due to ambiguity. It is unclear 



14:16 NORTH CAROLINA REGISTER Februarv 15, 2000 1478 



RULES REVIEW COMMISSION 



how the criteria in (2) are to be apphed. Criterion (2)(c) seems to favor an appUcant who has not previausly received funds. On the 
other hand criteria (2)(g) and (h) appear to favor previous successful fund appHcants. It is not clear how the criteria are to be 
considered when taken together. 

15A NCAC 7M .0403: DENR/Coastal Resources Commission - The Commission objected to this rule due to ambiguity. In (d): 
"...adequately protected.... unreasonably restricted... all reasonable mitigating measures.. ..to minimize impacts..." In (f)(3): 
"...reasonably likely to affect..." In (f)(4): "...high biological or recreational value... reasonably likely to affect..." In (f)(5): 
"...reasonably likely to affect..." In (f)(8): "...fragile or historic areas. ..of more than local significance..." In (f)( 10)(B): "...major 
tracts... and... important natural areas...." In (f)( 10)(G): "...large. ..or well-developed..." In (f)( 10)(H): "heavily developed. .heavily 
used..." In addition (f)( 1 ) is unclear. In essence it seems to say: Adverse impact on resources and uses shall be avoided unless 
there will be no adverse impacts. And after ( 1 ) says to avoid adverse impacts (2) seems to say assess the risks of certain types of 
adverse impacts and minimize it and mitigate the damage. But if ( 1 ) controls, then (2) shouldn't be necessary. 

Commissioner Futch recused himself from all the dental rules. 

COMMISSION PROCEDURES AND OTHER MATTERS 

Commissioner Sugg asked if any hurricane money had been returned to the Rules Review Commission. Mr. DeLuca reported 
that it had not. Commissioner Hayman requested information on any CLEs. She was told that the last one had been in 
November. 

The next meeting will be on Thursday, February 17. 2000. 

The meeting adjourned at 12:52 p.m. 

Respectfully submitted. 
Sandy Webster 



1479 NORTH CAROLINA REGISTER E ebruary 1 5 , 2000 14:16 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which arefded under North Carolina's Administrative Procedure Act. Copies of the 
ilecisions listed in the index and not published are availahle upon request for a minimal charge hy contacting the Office of 
Administrative Hearings, (919) 733-2698. Also, the Contested Case Decisions are availahle on the Internet at the following 
address: http://www.state.nc.us/OAH/hearingsidecision/caseindex.htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN. Ill 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMIN ISTRA TIVE LA W JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens Lassiter 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Beryl E. Wade 



AGENCY 



CASE 
NUMBER 



AL.I 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

Bnlthaven. Inc. v. Department of Administration 9S DOA OSl 1 Che.ss 

and 
Priva-Trends. Inc. 
Laidlaw Traniiit Svcs. Inc. v. Katie G. Dorsett, Sec'y/Dept/Administration ')9 DOA 0102 Morrison 



Oti/KI/yy 



06/1 i/yy 



14:1)2 NCR \\5> 



OFFICE OF ADMINISTRATIVE HEARINGS 

1 ed .Murrell. Zam, Inc. v. Office of Administrative Heanngs 
Saniuei Lee Ferguson \ . OtTice of .Administrative Hearings 

AGRICULTURE 

Archie McLean \ . Department of Agriculture 

ALCOHOLIC BE\ ERAGE CONTROL COMMISSION 

Aicoiiolic Beverage Control C'ommis.sion \ . Keyland, Inc., T/A Cloud 9 
Alcoholic Beverage Control Commission v. Food Lion. Inc.. Store #1351 
Alcoholic Beverage Control Commis.sion v. Stop 1, Inc. T/A Stop 1 Grocer. 
■Alcoholic Beverage Control Commission v. George Steven Everett 

t/a Casino Snooks Place 
Alcoholic Beverage Control Commission v. Beech Mountain Resort, Inc. 
Alcoholic Bev. Control Comm.v. Partnership T/A Mermaid Rest. & Lge. 
Alcoholic Beverage Control Commission v. Jaeson Nyung Kim 
Alcoholic Beverage Control Commission v. Lillian Sarah Clary 
Alcoholic Beverage Control Commission v. Circle K Stores, Inc., T/A 

Circle K #8357^ 
.Alcoholic Beverage Control Commission v. Vnus Enlerpnces. LLC, 

t/a Rendez Vous Club & City of Charlotte 
Alcoholic Beverage Control Commission v. Mohammad Salim Pirani 
Alcoholic Beverage Control Commission v. Creek Lounge, Inc. t/a 

Creek Lounge 
Delores Ann Holley v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Partnership T/A 

Corrolhers Community Center/Private Club 
Verdict Ridge Country Club, by H. Edward Knov \. Alcoholic 
Beserace Control Commission 



99 OAH 066S 


Chess 


99 0AHC)71S 


Chess 


98 DAG 1770 


Reilly 


98 ABC 1099 


Overbv 


98 ABC 1270 


Grav 


98 ABC 1337 


Phipps 


98 ABC 1546 


Reilly 


99 ABC 0287 


Reillv 


99 ABC 0367 


Chess 


99 ABC 0407 


Morrison 


99 ABC (1615 


Phipps 


99 ABC U656 


Grav 


99 ABC 0684 


Morgan 


99 ABC 0780 


Morrison 


99 ABC 0820 


Morgan 


99 ABC 0876 


Gray 


99 ABC (.1986 


Lassiter 


99 ABC 1637 


Morrison 



07/14/99 
07/16/99 



07/12/99 



01/17/99 
0.3/31/99 
09/29/99 
10/19/99 

08/11/99 
09/17/99 
07/09/99 
09/01/99 

11/29/99 
10/1-5/99 

09/21/99 
10/13/99 

08/10/99 
11/03/99 

01/07/00 



I4;04NCR 349 



14:04 NCR 347 



14:16 NCR 1489 



CRIME CONTROL AND PI BLIC SAFETY 

Ra\ .Anthony Breeding \ . Crime Control i; Public Safety 
John Ray Webb v. Cnme Victims Compensation Commission 
Sarene Franklin Holloway v. Crime Victims Compensation Comm. 
Paul Richard Mull v. Cnme Victims Compensation Commission 
Coradene Mayhand \ . Cnme Victims Compensation Commission 



93 CPS 0695 


Gray 


09/13/99 


95 CPS 1 353 


Gray 


09/13/99 


97 CPS 1172 


Chess 


10/12/99 


98 CPS 0342 


Che.ss 


07/26/99 


98 CPS 0398 


Chess 


1 ( l/( )9/99 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1480 



CONTESTED CASE DECISIONS 



AGENCY 

Edna Carr v. Crime Viclims Compensation Commission 

Enc Charles Williams v. Crime Control & Public Safety, Div. of 

State Highway Patrol 
Bobby Mills v. Crime Victims Compensation Commission 
William Samuel McCraw v. Crime Victims Compensation Commission 
Anson D. Looney v. Crime Victims Compensation Commission 
Elvin Williams, Jr. v. Crime Victims Compensation Commission 
Michael Anthony Powell v. Crime Victims Compensation Commission 
Mary Elizabeth Peoples Hogan v. Crime Victims Compensation Comm. 
Louise Dowd v. Crime Victims Compensation Commission 
Lemuel Ray Jenkins v. Crime Viclims Compensation Commission 
Annabel] B, McCormick v. Crime Victims Compensation Commission 
Chnstopher Beasley v. Crime Victims Compensation Commission 
Johnola E. McAllister v. NC Victim and Justice Services 

ENVIRONMENT AND NATURAL RESOURCES 

The Appletree Companies, Inc.. Successor to Stewart Products. Inc. 

and Utts Services, Ltd. v. Dept. of Environment & Natural Resources 
R.J. Reynolds Tobacco Co. v. Dept. of Environment & Natural Resources 
T. Famell Shingleton v. Environment and Natural Resources 
T. Famell Shingleton v. Environment and Natural Resources 
Town of Maysville v. Environment and Natural Resources 
Willie Setzer v. Department of Environment & Natural Resources 
Charles H. Jordan v. Brunswick County Health Department 
Jerry Franks and John Schifano. et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
Jerry Franks and John Schifano. et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
James P. and Irene P. Wilson v. Cleveland Co. Health & Sanitary 
Deep River Citizens' Coalition, American Canoe Assoc, Inc.. and Deep 

River Coalition, Inc. v. Department of Env. & Natural Resources 
Deep River Citizens' Coalition. American Canoe Assoc, Inc., and Deep 

River Coalition, Inc. v. City of Greensboro. Piedmont Triad Regional 

Water Aulhonty 
Mazzella's Restaurant. Peter D. Mazzella v. Carteret County Env. Health 
Roadway Express v. Department of Environment and Natural Resources 
John W. Venable v. Department of Environment and Natural Resources 
Shell Island Homeowners' Association v. DENR. Div. of Env. Health 
Gail S. Barfieid v. Department of Environment and Natural Resources 
Richard E. Day v. Division of Coastal Management 
Ronald L. Walker, Sr., v. Environmental Health Ala County 
CHfford Myers v. Montgomery County Health Department 
Deloris B. Wooten v. Pitt County Dept. of Environmental Health 
Manssa D. McCain v. Department of Environment and Natural Resources 
Town of Wallace v. Department of Environment and Natural Resources 

Division of Air Quality 

Neighbors Against The Cullasaja Asphalt Plant & Blue Ridge Env. 
Defense League, Inc. v. Dept of Env & Natural Resources and Rhodes 
Brothers Paving, Inc. and Carolina Asphalt Pavement Association 

Neighbors Against The Cullasaja Asphalt Plant & Filue Ridge Env. 
Defense League, Inc. v. Dept of Env & Natural Resources and Rhodes 
Brothers Paving, Inc. and Carolina Asphalt Pavement Association 

Terrance W. Bache, Pres., Terhane Group, Inc. v. DENR, Div/Air Quality 

Foothills Action Comm. For The Environment and The Blue Ridge 
Environmental Defense League, Inc. v. DENR, Div. of Air Quality & 
D&S Asphalt Matenals and Carolina Asphalt Pavement Assoc. 

XVIIl Airborne Corps & Fort Bragg. Dept. of the Army. USA v. 
Environment and Natural Resources, Div. of Air Quality 

J.D. Owen v. Environment and Natural Resources. Div. of Air Quality 

Environmental Management 

.Mien Raynor v. Environmental Management Commission 

Division of Land Resources 

Buel B. Barker. Jr. and Hubbard Realty of Winston-Salem, a NC Corp., 

jointly and severally v. DENR. Div. of Land Resources 
T.B. Powell. Inc. v. DENR. Division of Land Resources 
Ronald G. Smith v. DENR, Division of Land Resources 

Division of Marine Fisheries 

Ahon Chadwick v. Division of Manne Fisheries 



CASE 




DATE OF 


PLBLISHED DECISION 


NUMBER 


AL.I 


DECISION 


' REGISTER CITATION 


98 CPS 0788 


Chess 


10/28/99 




98CPS 1279 


Chess 


11/01/99 




'98 CPS 1412 


Wade 


08/06/99 




98 CPS 1626 


Morrison 


06/09/99 




99 CPS 0096 


Morrison 


05/25/99 




99 CPS 01 18 


Owens 


08/03/99 




99 CPS 0426 


Reilly 


08/03/99 




99 CPS 0504 


Reilly 


07/29/99 




99 CPS 0519 


Momson 


12/07/99 




99 CPS 0521 


Gray 


09/08/99 




99 CPS 0564 


Phipps 


08/04/99 




99 CPS 0843 


Chess 


11/23/99 




99 CPA 1060 


Gray 


12/29/99 




97 EHR 0745 


Lassiter 


U/19/99 




98 EHR 1315 


Wade 


06/04/99 


14:02 NCR 110 


98 EHR 1600 


Reilly 


10/08/99 


14:11 NCR 926 


98 EHR 1601 


Reilly 


10/08/99 




99 EHR 0069 


Owens 


09/27/99 




99 EHR 01 66 


Chess 


06/28/99 




99 EHR 0201 


Morrison 


06/28/99 




9') EHR 0344" 


Phipps 


09/28/99 




99 EHR 0380'' 


Phipps 


09/28/99 




99 EHR 0506 


Lassiter 


10/07/99 




99 EHR 0560" 


Reilly 


11/01/99 




99 EHR 0613" 


Reilly 


11/01/99 




99 EHR 0692 


Reilly 


08/19/99 




99 EHR 0745 


Morrison 


07/27/99 




99 EHR 0773 


Wade 


10/13/99 




99 EHR 0814 


Owens 


08/18/99 




99 EHR 0840 


Momson 


11/19/99 




99 EHR 0921 


Wade 


1 1/02/99 




99 EHR 1076 


Momson 


10/18/99 




99 EHR 1106 


Mann 


11/03/99 




99 EHR 1131 


Wade 


11/19/99 




99 EHR 1245 


Lassiter 


t) 1/04/00 




99 EHR 1194 


Chess 


12/06/99 




98 EHR 1735 


Gray 


09/30/99 


14:10 NCR 900 


98 EHR 1735'' 


Gray 


12/06/99 




98 EHR 1790 


Mann 


06/23/99 




99 EHR 0157'= 


Gray 


12/06/99 




99 EHR 0283 


Wade 


08/1 1/99 




99 EHR 0642 


Mann 


08/10/99 




99 EHR 0127 


Gray 


07/27/99 




98 EHR 1457 


Morrison 


06/09/99 




99 EHR 0632 


Wade 


10/04/99 




99 EHR 0799 


Morrison 


10/29/99 




99 EHR 0553 


Reilly 


08/19/99 





Division of Water Qualily 



1481 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



CONTESTED CASE DECISIONS 



AGENCY 

York Oil Company v, DENR, Division of Water Quality 

J. Todd Yates and Teresa B. Yates v. DENR, Div, of Water Quality 

N.G. Purvis Farms, Inc. v. DENR, Division of Water Quality 

Soil and Water Conservation Commission 

Neuse Rner houndalion, Neuse Ri\erkeeper, and Alliance For A 
Responsible .Swine Industry, Inc. \. NC -Soil & Water 
Conservation Commission 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AL.I 


DECISION 


REGISTER CITATION 


yVEHR 1026 


Phipps 


07/26/99 


14:04 NCR .M.^ 


98 EHR 1456 


Wade 


06/22/99 




99 EHR 0696 


Chess 


OS/27/99 




WEHR 16611 


Morrison 


12/10/99 


14:14 NCR 1 .\14 



BOARD OK GEOLOGISTS 

.Andrew M Raring, PhD v. Board for the Licensing of Geologists 

HEALTH AND HUMAN SERVICES 

Eardlev "JR" .Stephens \ . St. Bd. oi Nurse's Aides and Practitioners 

Ernest Clyde Absher and Dianna B. .''ihsher v. Health & Human Resources 

.Andrew Gainey v. Office of the Chief Medical E.xaminer 

.I.P. Lvnch V. Department of Health »^ Human Services 

Paul Walker, Thomas Walker & Mary Walker v, Mecklenburg Area 

Mental Health 
New Hope Living Centers, Enc D. Lewis v. Health & Human Services 
Frank McKov v. Department of Health & Human Services 
Joan Mane McDaniel v. Department of Health & Human Services 
Lonnie Herring \ . Department of Health A: Human Services 
Robert H. Riley v. Office of the Governor, Office of Citizen Services 
Betty C. Patterson v. Department of Health & Human Services 
Rayner Super Mkt., J.K. Rayner, Jr. \ . Department of Health and 

Human Services 
Monica Denise Dayson v. Department of Health A: Human Services 

Division of Child Development 

Shaw Speaks Child Dev. Ctr. v. Health A; Human Svcs., Child Dev. 
Lachelle L. Parsons v. Health & Human Svcs, Div. of Child Dev. 
In The Beginning, inc. \. Health A; Human Svcs.. Div. of Child Dev. 
F^amnger Center for Child Development, Elon Home for Children. 

Inc.. Rev. Dr. Frederick G. Grosse v. Health A: Human Services, 

Div. of Child Development 
Dulatown Outreach Center. Inc. v. Health A: Human Svcs,, Child Dev. 
Michele Denoff v. Health A: Human Services, Div. of Child Dev, 
MLCM, Inc., Mary C. McGovem v. DHHS, Div. of Child Dev. 
Small World Daycare II, Trena S. McDaniel v. Health A: Human Svcs.. 
Div. of Child Dev. 



99BOG01.'^(> 


Mann 


06/16/99 


9SDHR0I?? 


Phipps 


08/25/99 


9SDHR 1622 


Reilly 


06/17/99 


9SDHR 1761 


Owens 


0.5/12/99 


99DHR01II 


Reillv 


0.5/25/99 


99DHR01.'i,S 


Momson 


08/19/99 


99DHR0I7O 


Owens 


05/25/99 


99 DHR 0226 


Wade 


07/06/99 


99 DHR 030.S 


Reilly 


08/0.5/99 


99 DHR 0350 


Reilly 


06/03/99 


99 DHR 0.156 


Wade 


07/21/99 


99 DHR 0954 


Reilly 


1 1/05/99 


99 DHR 0961 


Momson 


11/15/99 


99 DHR 1041 


Reilly 


09/29/99 


99 DHR (1042 


Gray 


07/22/99 


99 DHR 0445 


Reillv 


07/19/99 


99 DHR 0575 


Mann 


07/19/99 


99 DHR 062 1 


Gray 


12/15/99 


99 DHR 06SX 


Owens 


07/21/99 


99 DHR 0695 


Owens 


08/05/99 


99 DHR 1032 


Wade 


1 1/19/99 


99 DHR 1038 


Lassiter 


10/06/99 



14;01 NCR 69 



Division of Facility Services 

Keily M. Poole v. Health & Human Services. Div. of Facility Services 
Norma Faye Lewis v. Health &: Human Svcs.. Div. of Facility Services 
Delia C. Jones v. Health & Human Services, Div. of Facility Services 
Heather Alane Scott v. Health *i.: Human Svcs. Div of Facility Services 
Effie Ruth Smith \. Health &i Human Svcs., Div. of Facility Services 
Vivienne Gelona Marshall v, DHHS. Div. of Facility Services 
Sarah L. Mathis v. DHHS. Div. oi Facility Services 
Dons Laviner Moser v. Health &. Human Services. Div. of Facility Svcs. 
Nomia Faye Lewis v. Health & Human Svcs., Div. of Facility Services 
Carolyn Grant v. Health & Human Services, Div. of Facility Services 
Manon Moser Thompson v. Health & Human Svcs., Facility Services 
Rose Mane Hadley v. Health i: Human Svcs.. Div. of Facility Services 
Sarah Frances Alford v. Health A; Human Svcs.. Div. of Facility Svcs. 
Alvm L. Phynon Jr. v. Health tt Human Svcs.. Dept. of Facility 
Cabarrus Memonal Hospital dA)/a Northeast Medical Center 

\ . DHHS. Div. of Facility Services. Certificate of Need Section & 

Cabarrus Diagnostic Imaging, Inc. 
Cabirrus Diagnostic Imaging. Inc. v, DHHS. Div. of Facility Services, 

Certificate of Need Section & Cabarrus Memonal Hospital, d/b/a 
Northeast Medical Center 
Barbara Rhue v. D.F.S. 
Barbara Rhue v. D.F.S. 

Michelle Johnson v. DHHS, Division of Facility Services 
Esther Nieves v. Health & Human Services. Div. of Facility Services 
Shirley Ann Beck v. Division of Facility Services 



97 DHR 0629 


Chess 


98 DHR 1274"' 


Phipps 


98 DHR 1680 


Gray 


98 DHR 1671 


Gray 


98 DHR 1774 


Chess 


98 DHR 1786 


Phipps 


99 DHR 0032 


Momson 


99 DHR 0074 


Wade 


99 DHR 0144*' 


Phipps 


99 DHR 0145 


Mann 


99 DHR 0216 


Grav 


99 DHR 0218 


Wade 


99DtlR0220 


Phipps 


99 DHR 023(1 


Mann 


99 DHR 0392 


Gray 


99 DHR 0.396 


Gray 


99 DHR 0401*' 


Wade 


99 DHR 0414*" 


Wade 


99 DHR 0546 


Grav 


99 DHR 0766 


Phipps 


99 DHR 0942 


Mann 



06/14/99 
07/02/99 
06/09/99 
10/08/99 
07/14/99 
09/02/99 
09/24/99 
OS/06/99 
07/02/99 
06/11/99 
08/13/99 
08/06/99 
06/0S/99 
07/07/99 
ll/IS/99 



12/20/99 



07/30/99 
07/30/99 
10/12/99 
07/21/99 
09/24/99 



Division of Medical Assistance 



Consolidale(J Cases. 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1482 



CONTESTED CASE DECISIONS 



AGENCY 

Interim HealthCare - Moms Group. Inc.. Lisa B. Morris, RN. BSN v. 

DHHS. Division of Medica! Assistance 
Companion Health Care. Inc. v. Div. of Medical Assistance. DHR 



Division of Mental Health, Developmental Disabilities and Substance Abuse Services 

S.S. by her parents and next friends. D.S. & A.S. v. DMH/DD/.SA.S 
Theresa Mabr\' in behalf of Aaron Mabry. a minor child v, DHHS, 
Div. of Mh/dD/SAS. Willie M. Section 

Division of Vocational Rehabilitation 

Dr. H. Michael Poole v. DHHS. Div of Vocational Rehabilitation 



Division of Social Services 

Robert H. Riley v. Iredell County DSS 

Roberi H. Riley v. Health & Human Svcs.. Div. of Social Services 

Joanna Price v. Caldwell County Social Services 

April De'Shelle Tumer v. DHHS, Div. of Social Service. 

Program Integnly Branch 
Betty S. Lewis v. DHHS. Div. of Social Services. Program Integnty 

Branch 

Veronica Owens v. Dept. of Social Services Union County 

Child Support Enforcement Section 
Grady J. Griffith v. Department of Human Resources 
Lindy Teachout v. Department of Health & Human Services 
Thomas Ashley Stewart II v. Department of Health & Human Services 
June V. Pettus v. Department of Human Resources 
Floyd W. Hubbard v. Department of Human Resources 
Richard Arnold Collins v. Jones County DSS 
David S. Blackwelder v. Department of Human Resources 
June V. Pettus v. Department of Human Resources 
Grady J. Griffith v. Department of Human Resources 
John T. Raynor v. Department of Human Resources 
Kenneth Wayne Adair \ . Department of Human Resources 
Randy Snead v. Department of Human Resources 
Shawn E. Williams v. Department of Human Resources 
Huri G. Stokes v. Department of Health & Human Services 
Ronald E. Sanders v. Department of Human Resources 
Willie D. Davis v. Department of Human Resources 
G.S. Hall V. Department of Health & Human Services 
Charles Stewart v. Department of Human Resources 
Sidney T. Dunn v. Department of Human Resources 
Kenneth A. McCrone v. Department of Human Resources 
Daniel R. Klock v. Department of Human Resources 
David M. VanDyke v. Department of Human Resources 
Jerome Maddox v. Department of Health & Human Services 
Samuel L. Gordon v. Department of Health & Human Services 
Sam Anderson v. Department of Human Resources 
Donald Edward Law II v. Department of Human Resources 
Sechia Lee Corbett v. Department of Human Resources 
Robert T. Ausband v. Department of Human Resources 
Shawn E. Williams v. Department of Human Resources 
Derrick Dobbins v. Department of Health & Human Services 
Antonio Melendez v. Department of Health & Human Services 
William W. Heck v. Department of Human Resources 
Matthew S. Conklin v. Department of Health & Human Services 
Rickey Lightner v. Department of Human Resources 
Matthew S. Conklin v. Department of Health & Human Services 
Robert M. Chandler Jr. v. Department of Health & Human Services 
Jermaine L. Covington v. Department of Health & Human Services 
Mitchell Moses. Jr. v. Department of Health & Human Services 
Grady L. Chosewood v. Department of Health & Human Services 
Fulton Allen Tillman v. Department of Health & Human Services 
Nathaniel Alston v. Department of Health & Human Services 
Bret Burtrum v. Department of Heallh & Human Services 
Cedric A. Hurst v. Department of Human Resources 
Dane Wesley Ware v. Department of Health & Human Services 
Paul H. Padrick v. Department of Health & Human Services 
Oscar William Willoughby Sr, v, Dept. of Health & Human Services 
Kelvin E. Townsend v. Department of Health & Human Services 
Billy J. Young v. Department of Health & Human Services 
Rodney Eugene Caldwell v. Department of Health & Human Services 
Adelheide J. Cooper v. Department of Health & Human Services 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


yy DHR 05.=i2 


Mann 


(19/01/99 


99 DHR 0762 


Owens 


07/29/99 


e Services 






99 DHR O.S.W 


Gray 


08/02/99 


99 DHR 1 1 ^2 


Gray 


12/20/99 



PUBLISHED DECISION 
REGISTER CITATION 



99 DHR 149.S 


Gray 


01/04/00 


99 DHR 0??'4 


Wade 


07/21/99 


99 DHR (135.S 


Wade 


07/21/99 


99 DHR 052(1 


Momson 


06/10/99 


99 DHR 0927 


Gray 


10/21/99 


99 DHR 0950 


Gray 


12/20/99 


99 MIS 0677 


Mann 


08/17/99 


97CRA 1570 


Mann 


10/26/99 


9.S CRA 0727 


Reilly 


06/24/99 


99 CRA 062S 


Reilly 


06/14/99 


96CSE 172!*' 


Mann 


09/17/99 


96CSEI725 


Reilly 


09/02/99 


96CSE1SI0 


Reilly 


06/28/99 


97CSE0416 


Momson 


08/24/99 


97 CSE 0867** 


Mann 


09/17/99 


97CSE 1569 


Mann 


10/26/99 


98 CSE 0054 


Gray 


10/21/99 


98 CSE 0229 


Momson 


06/30/99 


98 CSE 0544 


Gray 


10/21/99 


98 CSE 0845 


Phipps 


09/21/99 


98 CSE 0898 


Gray 


07/23/99 


98 CSE 1 182 


Mann 


10/26/99 


98 CSE 1387 


Mann 


09/17/99 


98 CSE 1392 


Reilly 


06/24/99 


98 CSE 1419 


Mann 


09/17/99 


98 CSE 1428 


Reilly 


01/1 1/00 


98 CSE 1435 


Gray 


08/04/99 


98 CSE 1440 


Momson 


10/20/99 


98 CSE 1549 


Mann 


09/17/99 


98 CSE 1562 


Mann 


09/17/99 


98 CSE 1563 


Chess 


01/04/00 


98 CSE 1585 


Mann 


09/17/99 


98 CSE 1586 


Morrison 


tl6/25/99 


98 CSE 1588 


Phipps 


09/21/99 


98 CSE 1612 


Mann 


1 1/02/99 


98 CSE 1613 


Phipps 


09/21/99 


98 CSE I6I6 


Lassiter 


01/21/00 


98 CSE 1635 


Chess 


09/30/99 


98 CSE 1638 


Mann 


09/17/99 


98 CSE 1702" 


Lassiter 


01/12/00 


98 CSE 1717 


Reilly 


11/02/99 


98 CSE 1785" 


Lassiter 


01/12/00 


98 CSE 1789 


Phipps 


05/27/99 


99 CSE 0209 


Lassiter 


11/18/99 


99 CSE 0217 


Wade 


11/30/99 


99 CSE 0301 


Mann 


07/01/99 


99 CSE 03 1 1 


Reilly 


06/30/99 


99 CSE 0317 


Mann 


07/01/99 


99 CSE 03 18 


Wade 


07/14/99 


99 CSE 0330 


Chess 


08/10/99 


99 CSE 0359 


Gray 


06/28/99 


99 CSE 0370 


Mann 


1 1/02/99 


99 CSE 0371 


Morrison 


06/28/99 


99 CSE 0373 


Phipps 


07/12/99 


99 CSE 0374 


Reilly 


06/14/99 


99 CSE 0427 


Lassiter 


10/20/99 


99 CSE 0428 


Phipps 


07/19/99 



1483 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



CONTESTED CASE DECISIONS 



AGENCY 

Beverlv K. Thompson \. Departmenl of Health & Human Services 
Michael L. Tmimer v. Departmenl of Heallh &: Human Services 
Ehzaheth F. West v. Department of Health ^t Human Services 
Trov Gibson v. Department of Health A: Human Services 
Roy D. Washington v. Department of Health A; Human Services 
Everett A. Mitchell v. Department of Heahh &. Human Services 
Corey Anloine Johnson v. Department oi Health &. Human Services 
Holland H, Harold v. Department of Heallh & Human Services 
Larry Lowell Dixon v. Department of Health Jt Human Services 
Calvin D- Alston \. Department of Health ti Human Ser\'ices 
Marquel Simmons \. Departmenl of Health &: Human Sen. ices 
Anthonv Vincente Battisla \ . Departmenl of Health & Human Services 
Gerald Scott Saucier v. Department of Heallh &. Human Services 
Lawrence Gordon Soles v. Department oi Health & Human Services 
Mohamed Moustafa \. Department of Health A: Human Services 
Damion C Graham \ . Department of Heallh A: Human Services 
Vicky L. Day \. Department of Health A: Human Ser\ices 
Matthew Conklin v. Department of Heallh A: Human Services 
Charlie James While v. Department of Health A: Human Services 
Bennie l^amar Knighten v. Departmenl of Health A; Human Services 
Lane Bolton v. Departmenl of Health & Human Services 
Randy Lewis Bryant v. Department of Health A; Human Services 
Earl C. Jones. Sr. v. Departmenl of Health A: Human Ser\'ices 
Joseph F. Donaldson. Ill v. Department oi Health A: Human Services 
Naion V. Pnde v. Department of Heallh A: Human Services 
Claude W. Jordan v. Department of Health A: Human Services 
Henrv Roosevelt Mercer v. Departmenl of Health & Human Services 
Bobbv Gene Owens v. Department of Heallh &. Human Services 
Thomas L. Vaughn v. Department oi Heallh & Human Services 
Robert F. Skipper v. Department of Health A: Human Services 
Gerald W. Lawson v. Department of Health A: Human Services 
David S. Yusko v. Departmenl of Heallh A: Human Ser\'ices 
Debbie Galmon Moore v. Departmenl of Health A; Human Services 
Kenneth Dana Kirk v. Department of Heallh A: Human Services 
Gill T, Smith v. Departmenl of Health A; Human Services 
Clarence Earl Burden v. Department of Heallh A: Human Services 
Garv Willis v. Department of Health A: Human Ser\ices 
Phillip Drye v. Department of Heallh A: Huinan Services 
William Kizzie v. Department of Heallh A: Human Services 
June S. Shepherd v. Department of Health A: Human Services 
James Homoki v. Departmenl of Health A: Human Senices 
Frank Edward Crane \, Haywood Co. Dept. of Social Services 
Michael Bryant v. Department of Heallh A: Human Ser\ices 
John Awuruonye v. Departmenl of Heallh A: Human Services 
Richard A. McKeller v. Department of Health A; Human Services 
Sharon Tucker v. Departmenl of Heallh <Si Human Services 
RavTiiond Ortiz v. Department of Health A: Human Services 
Eddie Southards v. Departmenl of Health A: Human Services 
Adelheide Cooper v. Department of Health A: Human Services 
Elliot G. Skillem v. Departmenl of Heallh A: Human Ser\ices 
John Ciccarelli v. Department of Health A: Human Services 
Eugene R. Hoover v. Department of Heallh & Human Services 
David Black \. Departmenl of Health A: Human Services 
David Black v. Departmenl of Health A: Human Services 
Malcolm S. Mungo v. Department of Health A: Human Ser\'ices 
George T. Crudup v. Departmenl of Health A; Human Services 
Hasan A. Rahman \. Departmenl of Heallh A: Human Ser\'ices 
King O. Williams v. Department of Health A: Human Services 
Michael J. Artis V. Departmenl of Heallh A: Human Services 
Keith L. Epps v. Department of Health A: Human Services 
Randolph C. Pilcock v. Departmenl of Health A: Human Services 
Nelson B. Chambers v. Department of Health A: Human Services 
William V\ilco\ \, Departmenl of Health A: Human Services 
Everton Walker v. Departmenl of Health A; Human Services 
Charles Bradley v. Departmenl of Heallh A: Human Services 
Robert T- Ausband v. Departmenl oi Health A: Human Services 
Willie J. Gadson v. Departmenl of Health A: Human Services 
Karlos M. Gregory v. Departmenl of Health A: Human Services 
Thomas A. Stewart. II \. Department oi Health A: Human Services 
Donald D. Birkhofer v. Departmenl of Health A: Human Services 
Donald S. Dorest v. Departmenl of Health A: Human Services 
Willie J. Curry v. Departmenl of Health A: Human Services 

Munel Thomas v. DHR. Div of Social Services 



CASE 




DATE OF 


NLMBER 


AU 


DECISION 


99 CSE (143? 


Reilly 


06/14/99 


99 CSE 0437 


Wade 


1)6/08/99 


99 CSE 045 1 


Mom son 


05/25/99 


99 CSE 0462 


Owens 


07/19/99 


99 CSE 0481 


Reillv 


06/25/99 


99 CSE 0483 


Chess 


10/05/99 


99 CSE 0486 


Gray 


09/13/99 


99 CSE 0509 


Mann 


11/02/99 


99 CSE 05 18 


Momson 


08/24/99 


99 CSE 0539 


Owens 


08/10/99 


99 CSE 0547 


Wade 


08/06/99 


99 CSE 0551 


Chess 


08/31/99 


99 CSE 0576 


Mann 


06/09/99 


99 CSE 0581 


Momson 


(16/09/99 


99 CSE 0582 


Owens 


08/05/99 


99 CSE 0635 


Wade 


12/06/99 


99 CSE 0679 


Gray 


09/27/99 


99 CSE 0689 


Mann 


09/17/99 


99 CSE 0690 


Momson 


07/20/99 


99 CSE 0702 


Owens 


09/20/99 


99 CSE 0735 


Phipps 


08/06/99 


99 CSE 0737 


ReiUy 


09/20/99 


99CSE0S01 


Gray 


08/10/99 


99 CSE 0802 


Mann 


11/02/99 


99 CSE 0825 


Phipps 


08/20/99 


99 CSE 083 1 


Reilly 


10/11/99 


99 CSE 0841 


Wade 


10/20/99 


99 CSE 0877 


Gray 


10/11/99 


99 CSE 0883 


Mann 


11/08/99 


99 CSE 0899 


Morrison 


10/20/99 


99 CSE 0909 


Lxssiter 


11/16/99 


99 CSE 0953 


Chess 


12/13/99 


99 CSE 0957 


Gray 


10/18/99 


99 CSE 0972 


Mann 


10/26/99 


99 CSE 1015 


Wade 


1 1/30/99 


99 CSE 1037 


Chess 


11/18/99 


99 CSE 1040 


Gray 


12/02/99 


99 CSE 1043 


Mann 


12/14/99 


99 CSE 1049 


Momson 


12/01/99 


99 CSE 1074 


Lassiler 


12/09/99 


99 CSE 1141 


Lassiter 


01/05/00 


99 CSE 1168 


Wade 


01/04/0(1 


99 CSE 1235 


Gray 


11/17/99 


99 CSE 1258 


Mann 


01/12/00 


99 CSE 1264 


Lassiter 


01/21/00 


99 CSE 1283 


Reilly 


1 1/30/99 


99 CSE 1287 


Mann 


01/12/00 


99 CSE 1288 


Momson 


11/30/99 


99 CSE 1310 


Lassiler 


12/23/99 


99 CSE 1313 


Reilly 


01/24/00 


99 CSE 1 324 


Wade 


12/15/99 


99 CSE 1333 


Momson 


12/20/99 


99 CSE 1334 


Reilly 


12/17/99 


99 CSE 1338 


Reilly 


12/17/99 


99 CSE 1 345 


Lassiter 


12/23/99 


99 CSE 1375 


Reilly 


01/05/00 


99 CSE 1378 


Gray 


1 2/20/99 


99 CSE 1412 


Mann 


12/20/99 


99 CSE 1419 


Momson 


12/13/99 


99 CSE 1426 


Wade 


01/06/00 


99 CSE 1429 


Mann 


01/21/00 


99 CSE 1437 


Mann 


01/04/00 


99 CSE 1440 


Reilly 


01/04/00 


99 CSE 1476 


Lassiter 


01/11/00 


99 CSE 1477 


Mann 


OI/12/00 


99 CSE 1492 


Mann 


01/21/0(1 


99 CSE 1498 


Reilly 


01/04/00 


99 CSE 1535 


Lassiter 


01/11/00 


99 CSE 1569 


Reilly 


01/11/00 


99 CSE 1570 


Wade 


01/07/00 


99 CSE 1588 


Lassiler 


01/05/00 


99 CSE 1623 


Lassiter 


01/05/00 


98 DCS 0631 


Wade 


12/15/99 



PL BLISHED DECISION 
REGISTER CITATION 



14:16 



NORTH CAROLINA REGISTER 



February 15. 2000 



1484 



CONTESTED CASE DECISIONS 



AGENCY 

Kathryn P. Fagan v. Department of Health & Human Services 
Tresha W. Robinson v. Department of Health &. Human Services 
Robert Dvvayne Kennedy v. Department of Health & Human Services 
Deborah Seegars v. Department of Heahh & Human Services 
Liihan Anne Darroch v. Department of Health it Human Services 
Evelyn C. Prall v. Department of Health & Human Services 
Jacqueline D. Caldwell v. Department of Health &. Human Services 

JUSTICE 

Alarm Systems Licensing Board 

Tern. Allen Bnckey v. Alarm Systems Licensing Board 
Travis Eric Reardon v. Alarm Systems Licensing Board 
Bnan Anthony Bartimac v. Alarm Systems Licensing Board 
Paul Luke Walczak v. Alami Systems Licensing Board 
Melvin T. Lohr v. Alami Systems Licensing Board 
Bradford D. Penny v. Alami Systems Licensing Board 
Benny L. Shaw v. Alami Systems Licensing Board 
Tracey Larue Santana v. Alarm Systems Licensing Board 
Donald Eugene Boger \. Alarm Systems Licensing Board 
Kaiur Washburn v. Alarm Systems Licensing Board 
Timothy Chezere Sifford v. Alarm Systems Licensing Board 
Howard Douglas Self v. Alami Systems Licensing Board 
Edward W. Hester v. Alarm Systems Licensing Board 
Steven Craig Holloway v. Alarm Systems Licensing Board 
Richard C. You'ig v. Alarm Systems Licensing Board 
Roger Bennett, Jr. v. Alami Systems Licensing Board 



CASE 




DATE OF 


NUMBER 


AL.I 


DECISION 


9XDCS 1769 


Momson 


06/25/99 


99DCS(I4S(I 


Grav 


lO/lX/99 


99 DCS II4S2 


Wade 


09/10/99 


99 DCS (15(15 


Phipps 


06/30/99 


99 DCS 0555 


Gray 


07/06/99 


99 DCS (IS 13 


Owens 


08/25/99 


99 DCS 0974 


Momson 


09/20/99 



PUBLISHED DECISION 
REGISTER CITATION 



99 DOJ 
99DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 
99 DOJ 



0097 
0446 
04,S7 
04X9 
0490 
0522 
0523 
0524 
0715 
0716 
1022 
1230 
1295 
1299 
1304 
1466 



Wade 

Phipps 

Momson 

Owens 

Momson 

Momson 

Momson 

Phipps 

Owens 

Owens 

Momson 

Reiliy 

Momson 

Morrison 

Momson 

Wade 



05/21/99 
07/28/99 
05/25/99 
08/03/99 
05/24/99 
06/08/99 
06/08/99 
09/24/99 
07/29/99 
07/29/99 
09/24/99 
10/27/99 
12/03/99 
12/07/99 
12/03/99 
(1 1/07/00 



Education and Training Standards Division 

Rock Steven Edwards \, Criminal Justice Ed. ti: Training Slds. Comm. 98 DOJ 0906 Chess 

Anthony Scott Hughes v. Sheriffs' Ed. & Training Standards Comm. 98 DOJ 1530 Chess 

Hal Pilgreen v. Cnminal Justice Ed. & Training Stds. Comm. 98 DOJ 1775 Chess 

Emma J. Kiser \. Shenffs' Ed. & Training Standards Comm 98 DOJ 1793 Gray 

Keith Allen Noms v. Sheriffs' Ed. & Training Standards Comm. 99 DOJ 0045 Mann 

Sherry Davis Kenney v. Criminal Justice Ed. & Training Stds. Comm. 99 DOJ 0067 Wade 

Bnan G. Mead v. Cnminal Justice Education & Training Slds. Comm. 99 DOJ 0106 Gray 

Steven Randolph Russell v. Cnminal Justice Ed. & Training Stds. Comm. 99 DOJ 0123 Owens 

Rus.sell Lee Yelverton v. Criminal Justice Ed. & Training Stds. Comm. 99 DOJ 0131 Phipps 

James Manon Massey v. Cnminal Justice Ed. & Training Stds. Comm. 99 DOJ 0168 Reilly 

Mark E. Narron v. Sheriffs' Ed. & Training Stds. Commission 99 DOJ 0453 Momson 

Shean E. Taylor v. Sheriffs' Ed. & Training Stds. Commission ^9 DOJ 0790 ReiUy 

Dennis L. Ranisingh v. Shenffs' Ed. & Training Stds. Commission 99 DOJ 0796 Gray 

Sandra G. Armstrong v. Shenffs" Ed. & Training Standards Comm. 99 DOJ 0844 Mann 

Edward L. Lusk v. Sheriffs' Ed. & Training Standards C^omm. 99 DOJ 0846 Phipps 

Tonnette Bemhury v. Shenffs' Ed. & Training Standards Comm. 99 DOJ 0934 Reilly 

Terry Leon Jones \. Cnminal Justice Education & Training Stds. Comm. 99 DOJ 1054 Wade 

Brenda J. Hines v. Sheriffs' Education & Training Stds. Comm. 99 DOJ 1 138 Wade 

Georse Hoke Powell. Jr. v. Cnminal Justice Ed. & Trainine Stds. Comm. 99 DOJ 1363 Chess 



05/13/49 
05/12/99 
06/09/99 
06/07/99 
07/29/99 
06/08/99 
10/07/99 
10/29/99 
08/11/99 
10/11/99 
09/08/49 
09/29/99 
1 1/04/99 
09/24/99 
09/29/99 
09/29/99 
10/21/99 
10/14/49 
12/08/99 



14:04 NCR 35! 



14:11 NCR 928 



14:07 NCR 568 



Private Protective Services Board 

Tn-City Secunties and James G. Hutcherson v. Private Protective Svcs. Bd. 98 DOJ 1749*' Phipps 

Tri-City Securities and James G. Hutcherson v. Private Protective Svcs. Bd. 98 DOJ 1752*' Phipps 

Ordie Hazu McFariand v. Pnvate Protective Services Board 99 DOJ 0099 Momson 

Thomas E. Mewborn v. Private Protective Services Board 99 DOJ 0101 Owens 

Michael Lynn Arter v. Private Protective Services Board 99 DOJ 0262 Wade 

Jeffrey S. Moore v. Private Protective Services Board 99 DOJ 0488 Momson 

Bonnie Mane Keller v. Private Protective Services Board 99 DOJ 0491 Momson 

Shawn E. Alexander v. Private Protective Services Board 99 DOJ 0492 Owens 

Ronald E. Sulloway v. Pnvate Protective Services Board 99 DOJ 0493 Momson 

Raymond Solomon v. Private Protective Services Board 99 DOJ 0494 Momson 

Charles E. Evans. Jr. \. Private Protective Services Board 99 DOJ 0496 Momson 

Lawrence Manin v. Private Protective Services Board 99 DOJ 0526 Momson 

William E. Ellis. Sr. v. Pnvate Protective Services Board 99 DOJ 0527 Momson 

Bobby James Nicholson v. Pnvate Protective Services Board 99 DOJ 0528 Phipps 

Murray J. Degnan v. Pnvate Protective Services Board 99 DOJ 0529 Gray 

James Lee Moms v. Private Protective Services Board 99 DOJ 07 14 Chess 

Thomas William Atchison v. Pnvate Protective Services Board 99 DOJ 1018 Morrison 

Mark Lavem Hewitt V. Pnvate Protective Services Board 99 DOJ 1019 Gray 

Roberi Steven Pekel v. Pnvate Protective Services Board 99 DOJ 1020 Gray 

Peggy Ann Galespie v. Private Protective Services Board 99 DOJ 1121 Chess 

Michael Jaye Kom v. Pnvate Protective Services Board 99 DOJ 1 122 Wade 

Jacqueline Renee Haywood v. Pnvate Protective Services Board 99 DOJ 1 123 Gray 

Isaiah Komegay. Jr. v. Pnvate Protective Services Board 99 DOJ 1290 Momson 

Wayne Orlando Miller V. Pnvate Protective Services Board 99 DOJ 1291 Momson 

Richard .Asiedu v. Private Protective Services Board 99 DOJ 1293 Momson 



09/02/99 
09/02/99 
10/12/99 
07/30/49 
05/25/49 
05/24/99 
05/24/99 
07/19/99 
05/24/99 
05/25/99 
05/25/99 
10/25/99 
06/08/99 
08/17/99 
11/29/99 
12/08/99 
09/21/49 
11/10/49 
11/10/99 
12/08/99 
01/07/00 
11/10/99 
12/07/99 
1 2/09/99 
1 2/09/99 



1485 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



CONTESTED CASE DECISIONS 



AGENCY 

David Gregorv Minis v. Private Protective Services Board 
Garland D. Melvin v. Pnvate Protective Services Board 
Jerron Devoa Caldwell v. Private Protective Services Board 
Theodore Little v. Private Protective Services Board 
Dennis L. Young v. Private Protective Services Board 
Jose V. Vargas v. Private Protective Services Board 
Gwendolyn L. Gray v. Private Protective Ser\ices Board 
Allen D. Edenburn v. Private Protective Services Board 
Chris George McCracken v. Private Protective Services Board 

PL BLIC INSTRLCTION 

Martin Wavne Fletcher v. St. Bd. oi Educ. Dept oi Public Instruction 
S.H. bv and through her guardian and custodian. H.H. and H.H \ . 

Henderson Countv Board ol Kducalion 
Paula Morrill, individually/on behalf ot John Morrill v. Wake Cty, Schools 
S.L.F. and S.F.F. v. Charlotte-Mecklenburg Board oi Education 
Marshall Scoll Brannan v. Departnienl of Public instruction 
Matthew Weber, and his father and next friend, Brian Weber, and Brian 

Weber v. Wilkes County Schools 
Michael Mathison v, Charlotte-Mecklenburg Board of Education 
David J. Dew v. Charlotte-Mecklenburg Board of Education 
Deborah F. Brogden v. State Board oi Education 
C. Kenneth W amnglon v. Edgecombe County Schools 
Edward Lawrence Momll & Paula Mane Momll v. Board of Directors 

Raleich Charier Hmh School 



CASE 




DATE OF 


NUMBER 


AL.1 


DECISION 


99DOJ 1294 


Chess 


12/OS/99 


99DOJ 1296 


Momson 


12/03/99 


99DOJ 1297 


Chess 


12/0S/99 


99 DOJ 1300 


Wade 


01/07/00 


99DOJ 1301 


Momson 


12/03/99 


99 DOJ 1302 


Momson 


12/03/99 


99 DOJ 1303 


Morrison 


12/03/99 


99 DOJ 1 30? 


Momson 


12/03/99 


99 DOJ 1417 


Momson 


11/29/99 


98EDC(IIIII1 


Chess 


09/21/M<J4 


9SEDC 1124 


Mann 


06/1 1/W 


9SEDC 120? 


Cira\ 


09/24/99 


9SEDC 1649 


Mann 


1)6/04/99 


9XEDC 1796 


Owens 


07/13/99 


99 EDC 029 1 


Mann 


09/07/99 


99 EDC 1)390 


Gray 


12/16/99 


99 EDC (U9X 


Gray 


12/13/99 


99 EDC 0734 


Reillv 


10/05/99 


99 EDC 0955 


Reilly 


09/29/99 


99 EDC 1080 


Chess 


01/11/00 



PL BLISHED DECISION 
RECISTER CITATION 



14:07 NCR ^t5 



STATE PERSONNEL 



Department of Administration 

Bernard A. Brown v. Department of Administration 

Department of Agriculture 

\\,C Troxler. Jr. v. Dept. of Agnculture and Consumer Services 

Community Colleges 

Thomas Michael Chamberlin v. Department of Community Colleges 

Correction 

E. Wayne Irvin v. Department of Correction 

Pershield DeLoatch v. Department of Correction 

Deborah Smith v. Department of Correction 

Maydean L. Taylor \. Department of Correction 

Ann McMillian \. Momson Youth Institution. Department of Correction 

Edward Alan Roper v. DOC. Div. oi Pnsons. Western '^'oulh Institute 

Shirley Sellars v. Department of Correction 

Sean R. Dillard v. Dept. of Correction, Pasquotank Correctional Inst. 

DeCarlos Stanley v. Department of Correction 

Steve A. Matthews v. Department of Correction 

Patrick Smith \ . Department of Correction 

Harry E. Kenan \ Capi, B.F. Lewis, Polk Y'outh Institution 

Roben Russell. Jr. v. Jeff Jones. Div of Community Corrections 

Judith Caves v. Department of Correction 

Shirley Sellars v. Department of Correction 

Richmond Fulmore v. Department of Correction, Wake Correctional 

Henr\ C. Parks \. DART/Admin., Ann Shea. Edward McCall, Thomas 

G. Ivester 
Jern. D. Crawford \. Depanment of Correction 99 OSP 0577 
Walter L. Whitaker v. Capt. Ricky Johnson, Pasquotank Corr. Inst. 
Angelo Alfonzo Smith v. Department of Correction 
Cha''les Creegan v. Department of Correction 
Kathi P. Brown v. NC Correctional Institute for Women 
David J. Dennis v. Department of Corrections. Polk 'loulh Institution 
Tara King v. Department of Corrections 
Joyce Ann BulloLk v. Polk Youth Institution 
Timothy Raniey v. Department of Correction 
Curtis Lee Tucker v. Dept. of Correction - Caledonia 
Heather Williams v. Department of Correction 
Edward E. Hodge v. Department of Correction 
Russell S. Jackson v. Department of Correction, Albemarle 

Correctional Inst. /Michael York 
Valee Taylor v. Department of Correction 

Sharon Tucker v. Ms. LaVee Hamer, DOC, Gen. Coun.sel to the Secretary 
Jan C. Smith v. Department of Correction, Dart Cherry Program 



99 OSP 1025 


Wade 


01/14/00 


99 OSP 0659 


Chess 


07/27/99 


99 OSP 0286 


Phipps 


06/25/99 


94 OSP 1791 


Morrison 


0?/ 18/99 


98 OSP 1026 


Gra\ 


OX/1 1/99 


98 OSP 1126 


Chess 


06/22/99 


98 OSP 1272 


Chess 


05/14/99 


98 OSP 127? 


Chess 


05/12/99 


98 OSP 1644 


Gray 


OX/ 11/99 


98 OSP 1788'" 


Gray 


09/30/99 


98 OSP 1X00 


Gray 


OX/26/99 


99 OSP 0027 


Morrison 


06/22/99 


99 OSP 0162 


Momson 


()X/20/99 


99 OSP 0163 


Momson 


10/14/99 


99 OSP 0257 


Phipps 


06/07/99 


99OSP025X 


Lassiler 


09/29/99 


99 OSP 0338 


Phipps 


09/29/99 


99 OSP 0386'" 


Gray 


09/30/99 


99 OSP 04 16 


Mann 


06/04/99 


90 OSP 0512 


Momson 


09/22/99 


Reillv 


06/02/99 




9') OSP 0644 


Gray 


10/12/99 


99 OSP 067? 


Gray 


11/04/99 


99 OSP 0765 


Reilly 


()X/()3/99 


99 OSP 0914 


Chess 


12/10/99 


99 OSP 0918 


Chess 


10/12/99 


99 OSP 0930 


Chess 


11/08/99 


99 OSP 1065 


Wade 


11/15/99 


99 OSP 1085 


Chess 


1 1/22/99 


99 OSP 1097 


Wade 


12/06/99 


99 OSP 1163 


Reillv 


12/13/99 


99 OSP 1224 


Lassiter 


01/03/00 


99 OSP 1236 


Momson 


1 2/22/99 


99 OSP 1256 


Lassiter 


01/O5/O0 


99 OSP 1519 


Gray 


01/10/00 


99 OSP 1647 


Gray 


01/21/00 



14:01 NCR 60 



14:11 NCR 945 



14:16 



NORTH CAROLINA REGISTER 



February 15, 2000 



1486 



CONTESTED CASE DECISIONS 



AGENCY 

Crime Control and Public Safety 

Thomas Michael Chaniberlin v. DCCPS. Center tor Missing Persons 

North Carolina School for the Deaf 

Steve Crawford v. North Carolina School for the Deaf 
Danny Wilson Carson v. North Carolina School for the Deaf 
Eric Arden Hurley v. North Carolina School for the Deaf 

Employment Security Commission 

Russell J. Suga v. Emplovment Secunly Commission 

Environment and Natural Resources 

L. Clifton Carroll v. Dept of Natural Resources, Div, of Parks and 

Recreation 
Larry A. Campbell v. NC Wildhfe Resources Commission 
Pathe Vivek v. Department of Environment & Natural Resources 

Health and Human Services 

Debbie L. Whilley v. Wake County Department of Social Services 

Vera Crenshaw v. DHHS. Julian F. Keith Ale. & Drug Abuse Trtmt. Ctr. 

Ivey G. Rhodes v. Pitt County Mental Health Center 

Odessa D. Gwynn v. Caswell County Health Department 

Doris Virginia Weanng v. Durham County Health Department 

Leon Kea v. DHR, O'Berry Center 

Julia A. Cameron v. John Umstead Hospital. Health & Human Services 

Danny Jacob v. Onslow County Board of Health 

Jency Abrams v. Department of Health & Human Services 

Lisa Adams-Houghton v. Rockingham Co. Dept of Social Services 

Timothy Truzy v. Department of Health & Human Services 

Carlos D. Burks, Sr. v. North Carolina Special Care Center 

Donna Pittman v. Department of Health & Human Services 

Bryan Benson v. Durham Cly. Area MH/DD/SAS Program 

Shirley C. Jones v. Department of Health & Human Ser\'ices 

James Michael Dunn v. Pitt Co. Mental Health. Developmental 

Disabilities, and Substance Abuse Area Program 
Odell Hudson v. Health & Human Svcs.. Dorothea Di\ Hospital 
Erica Joynes v. Durham County Department of Social Services 
Thomas Michael Chamberlin v. Off. of Juvenile Justice, Juvenile 

Services Division. 14'"' Distnct Court Division 
Cheryl Highsmith v. DHHS. Youth Svcs.. New Hanover Reg. Juvenile 

Detention Center 
Carolyn A. Carter v. Cleveland County Dept of Social Services 
Veda B. Gill v. Durham County Department of Social Services 
Edna W'. Childs v. Gaston-Lincoln Area Mental Health Program 
Anthony Ratcliff \ . Department of Health Ac Human Services 

Johnston County 

Lili Romaine Lee v. County of Johnston 

Justice 

Thomas Michael Chaniberlin v. Justice, Justice Academy 

Labor 

Robert C. Adams v. Department of Labor 

Department of Public Instruction 

Bill) McHachem v. Schools of Robeson County 
John Lee Herbin v. Smarkand Manor Training School 
Linda D. Chapman v. Lenoir County Public Schools 

State A uditor 

.Antonio Allen Bolton v. Office of the N.C. State Auditor 

Transportation 

Michelle Maloney Wilkins v. Department of Transportation 

Judy S. Grindstaff v. Department of Transportation 

Charles W. McAdams v. Dept. of Transportation. Div/Molor Vehicles 

Larry R. Lane v. Department of Transportation 

Ronald Roberson v. Dept. of Transportation. Righl-of-Way Branch 

Shelvia Davis v. Department of Transportation 

Camialita Daniels v. Department of Transportation 

Paul N. Hams v. Dept. of Transportation. Di\ of Motor Vehicles 

Carolyn Campell \. Dept of Transportation 



CASE 




DATE OF 


PIBLISHED DECISION 


NUMBER 


AU 


DECISION 


* REGISTER CITATION 


99 OSP 0596*' 


Gray 


08/16/99 




99 OSP 1164(1 


Lassiler 


1 (J/ 18/99 




99 OSP (1641 


Lassiter 


10/18/99 




99 OSP (1(1X7 


Reilly 


06/24/99 




96 OSP 1122 


Reilly 


05/26/99 




9H OSP (1914 


Gray 


10/22/99 


14:12 NCR 1082 


99 OSP ()()?() 


Momson 


11/10/99 


14:12 NCR 1086 


99 OSP 0956 


Chess 


10/06/99 




97 OSP 0722 


Phipps 


09/27/99 




9S OSP 0456 


Gray 


08/05/99 




9S OSP 0924 


Phipps 


07/09/99 




98 OSP 1299 


Grav 


08/25/99 




9S OSP 1432 


Reil'ly 


06/18/99 




9KOSP 1733 


Momson 


12/22/99 




99 OSP 0053 


Momson 


06/22/99 




99 OSP 0129 


Gray 


10/12/99 


14:11 NCR 936 


99 OSP 0147 


Owens 


08/11/99 




99 OSP 027S 


Gray 


11/04/99 




99 OSP 0316 


Gray 


10/22/99 




99 OSP 0325 


Owens 


08/25/99 




99 OSP 0444 


Monson 


12/15/99 




99 OSP 0516 


Gray 


08/31/99 




99 OSP 0533 


Mann 


09/24/99 




99 OSP 0549 


Gray 


12/21/99 




99 OSP 0609 


Gray 


07/07/99 




99 OSP 0671 


Gray 


07/13/99 




99 OSP 0673*-' 


Gray 


08/16/99 




99 OSP 0763 


Owens 


09/03/99 




99 OSP 1055 


Gray 


11/29/99 




99 OSP 1090 


Momson 


11/09/99 




99 OSP 1454 


Momson 


12/29/99 




99 OSP 1483 


Phipps 


09/22/99 




99 OSP (1456 


Momson 


06/02/99 




99 OSP 0308 


Phipps 


06/11/99 




99 OSP 0667 


Gray 


07/28/99 




99 OSP 0189 


Wade 


09/04/99 




99 OSP 0273 


Gray 


08/04/99 




99 OSP 0691 


Reilly 


08/16/99 




99 OSP 0979 


Wade 


11/22/99 




98 OSP 0836 


Momson 


05/20/99 




98 OSP 1028 


Gray 


09/3(.)/99 




99 OSP 0034 


Mann 


06/23/99 




99 OSP 0105 


Mann 


06/1 1/99 




99 OSP 0142 


Momson 


06/08/99 




99 OSP 01 56 


Owens 


06/23/99 




99 OSP 0264 


Gray 


08/20/99 




99 OSP 0625 


Gray 


12/02/99 


14:14 NCR 1336 


99 OSP 0739 


Reilly 


12/03/99 


14:14 NCR 1339 



1487 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
MMBER 



AL.l 



DATE OF 
DECISION 



PLBLISHED DECISION 
REGISTER CITATION 



University of North Carolina 

Wanda Troxler \. A A; T Slate University and Dr. Ray J. Davis 
\'i\ian Smith Hamniiel, Ling-Chih C. Hsu and Joel A, Wdliams v. East 
Carolina Unnersity 

. Linc-Chih C. Hsu and Joel A. WUliams v 



East 
1. Linc-Chih C. Hsu and Joel A- Wdlianis v. East 



\'i\ian Smith Hanimiel. 

Carolina Uni\ersity 
\'ivian Smith Hammiel. 

Carohna University 
Jacl<ie S. Flowers \. East Carolina Llniversity 
Janies A. Benton v. University of North Carolina at Charlotte 
Tracey L. Wilson v. North Carolina Central University 
Rex A. Coughenour v. University of North Carolina at Chapel Hill 
Anna Anita Huff v. Dr. Lonnie Sharpe/Dr. Reza Salami-Coll./Engineenng 
Rex A. Coughenour v. University of North Carolina at Chapel Hill 
Thomas Michael Chamberlin v. UNC (a Chapel Hill, Dept. of Uni\ersit\ 

Housing. Division of Student Affairs 
Halycon Tudie Blake v. LIniversity of North Carolina at Chapel Hill 
Bndgette R. Booker v. Winston-Salem State University 
Rex A. Coughenour v . University of North Carolina at Chapel Hill 
Temperance T. Tobe v. North Carolina Central University 
Phyllis Mamn v. NC A & T State University 
James W. Murrell v. University of North Carolina at Chapel Hill 
Harold Richardson v. University of North Carolina at Charlotte 
Albertina Thompson \ . Chancellor James Renick of NC A & T Uni\ . 



DEPARTMENT OF LABOR 

Bellacino's \. Department of I^bor 



99DOL 1216 



DEPARTMENT OF TRANSPORTATION 

Peter Kay.. Stem v. Department of Transportation 

I NIVERSITV OF NORTH CAROLINA 

Stephanie A. Payne \, UNC Hospitals 

Barbara A. Russell v. flNC Hospitals 

Robin Perkins Stephens \. UNC Hospitals 

Riia Jo Kincaid v. UNC Hospitals 

Rita Jo Kincaid v. UNC Hospitals 

Hdna Heath v. UNC Hospitals 

Clinton E. Taylor. Sr., v. UNC Hospitals 



y7OSP08iy 
47 0SP 126X»- 

97 0SP 1269*- 

97 0SP 12711- 

9SOSP 1618 
99 OSP 0047 
99OSP03S8 
99 OSP 0.=; 17*" 
99 OSP 0599 
99 OSP 0623*" 
99 OSP 0674*" 

99OSP06S6 
99 OSP 0731 
99 OSP 0K30*" 
99OSP0S6.S 
99 OSP 1030 
94 OSP 1102 
99 OSP 120X 
99 OSP 1578 



Reilly 



Phipps 
Phipps 

Phipps 

Phipps 

Reilly 
Wade 
Chess 
Reilly 
Chess 
Reilly 
Gray 

Gray 

Chess 

Reilly 

Chess 

Lassiter 

Morrison 

Wade 

Grav 



12/14/99 



08/02/99 
07/06/99 

07/06/99 

07/06/99 

06/24/99 
10/08/99 
12/06/99 
08/27/99 
07/16/99 
08/27/99 
08/16/99 

07/08/99 
09/03/99 
08/27/99 
08/24/99 
01/04/00 
11/29/99 
11/15/99 
12/17/99 



99 DOT 0668 


Owens 


07/29/99 


99 UNC 0375 


Momson 


06/21/99 


99 UNC 0540 


Grav 


08/11/99 


99 UNC 0563 


Owens 


07/21/99 


99 UNC 0746*' 


Reilly 


08/09/99 


99 UNC 0747*' 


Reillv 


08/09/99 


99 UNC 0943 


Chess 


10/15/99 


99 UNC 1117 


Morrison 


12/22/99 



14:16 



NORTH CAROLINA REGISTER 



February 15. 2000 



1488 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF LINCOLN 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

99 ABC 1637 



VERDICT RIDGE COUNTRY CLUB. INC. 
H. EDWARD KNOX. 
Petitioner, 



) 



RECOMMENDED DECISION 



N.C. ALCOHOLIC BEVERAGE CONTROL COMMISSION, ) 
Respondent. ) 



This matter was heard before Senior Administrative Law Judge Fred G. Morrison Jr. by telephone conference call on January 
5. 2000. Raleigh, North Carolina. Petitioner was represented by attorney H. Edward Knox of Charlotte, North Carolina. Respondent 
was represented by its Chief Deputy Counsel. Fred A. Gregory. 

ISSUE 

Whether the Alcoholic Beverage Control Commission's decision to deny ABC permits to the Petitioner should be affirmed 
or reversed. 

STATUTES INVOLVED 

N.C. Gen. Stat. §§18B-600 

18B-901 

188-1000(8) 

18B-1001 
18B-1006(k) 

STIPULATED FACTS 

The Petitioner and Respondent have stipulated to the following facts: 

1. That Petitioner's establishment is a golf and country club with an eighteen hole golf course, three tennis courts and 
a swimming facility located in Denver. North Carolina, which is in Lincoln County. That Petitioner is a Sports Club within the 
meaning of'^N.C.G.S. § 18B-i000(8). 

2. That Petitioner applied for on-premises malt beverage, on-premises unfortified wine, on-premises fortified wine, 
and mixed beverage sports club pemiits on August 16, 1999. Petitioner has met all of the requirements of N.C. G.S. §§ 18B-901 and 
18B-1006(k), except that Lincoln County is exempt from that section. 

3. That on December 1. 1999. Petitioner filed an action for a contested case hearing on the grounds that the ABC 
Commission denied the issuance of ABC permits to Petitioner. In its hearing request. Petitioner raised the issue of the constitutionality 
of the legislation in N.C. G.S. § 18B-1006(k). which grants alcoholic beverage permits to sports clubs located in some, but not all 
North Carolina counties. 

4. That on February 12.1 949. a majority of voters of Lincoln County voted against the sale of malt beverages and 
unfortified wine. 

5. TTiat there has been no subsequent county-wide election in Lincoln County approving the sale of malt beverages, 
unfortified wine, fortified wine, or mixed beverages as required by N.C. G.S. § 18B-600. The city of Lincolnton, located within 
Lincoln County, has approved an ABC package store and off premises beer and wine sales. 

6. That the Petitioner would qualify as a sports club pursuant to G.S. § 18B- 1000(8) and ABC Commission Rule 4 
NCAC2S.06I3. 



1489 



NORTH CAROLINA REGISTER 



February 15, 2000 



14:16 



CONTESTED CASE DECISIONS 



I . The North Carohna General Assembly has enacted no legislation permitting the sale of any type of alcoholic 
beverages for sports clubs in Lincoln County. 

8. That the legislation found at G.S. §§ 18B-1006(k) and 18B-603{h) allows permits to be obtained by sports clubs, 
such as the Petitioner, in some 30 or more of North Carolina's 100 counties, but not in Lincoln County. See Exhibit 1. 

9. There are other sports clubs with which the Petitioner competes for members and patrons that are identically situated 
in all relevant respects with Petitioner, except that they are located in counties which are identified under N.C. G.S. § 18B-l()()6(k)( 1 ) 
- ( 8 ). and therefore these competitors have been granted the same permits which were denied to the Petitioner. Some of these counties 
adjoin Lincoln County and this gives them an advantage over Petitioner. 

10. That the Petitioner challenges the constitutionality of these statutes but acknowledges that neither the Office of 
Administrative Hearings nor the North Carolina ABC Commission is a forum of competent jurisdiction for such a challenge. 

I I . The Respondent. ABC Commission, has no authority under the existing law to grant the Petitioner its license and 
has therefore moved for summary judgment. 

CONCLUSIONS OF LAW 

1 . The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case pursuant 
to Chapters 18B and l.'iOB of the North Carolina General Statutes. 

2. The ABC Commission has been given exclusive authority by the North Carolina legislature to detemiine whether 
to issue permits to sell alcohol. The Commission may issue a permit when it is satisfied that the applicant is a suitable person to hold 
an ABC permit and that the location is a suitable place to hold the permit for which the applicant has applied. By the same token, the 
Commission can decide to deny an application for a permit when it decides a proposed pemiittee does not meet statutory 
qualifications. 

3. Petitioner does not qualify for pennits under G.S. § 18B-1006(k) because it is not located within a county that meets 
the requirements set forth in any of the subdivisions { I) - (8); 

The Commission may issue the pemiits listed in G.S. 1 8B- 1001 . without approval at an election, to a residential private club 
or a sports club that is located in a county that meets the requirements set in any of the following subdivisions: 

( 1 ) Has a population of less than 45,000 by the last federal census, has at least three but not more than four cities that 
have approved the sale of malt beverages or unfortified wine, has only one city that has approved the on-premises sale of malt 
beverages, and has at least two cities that approved the operation of ABC stores before July 10. 1992. 

(2) Borders a county that has called elections pursuant to G.S. 18B-600(f). and: 

a. Has not approved the issuance of pennits, other than malt beverages pemiits. in unincorporated 
areas of the county, and has no more than three cities that approved the operation of ABC stores before July 10, 
1992: or 

b. Both the county and the two cities with in the county have approved the operation of ABC stores. 

(3) Is bordered by four counties that have not approved the issuance of permits and have at least one city that has 
approved the operation of an ABC store. 

(4) Has not approved the issuance of permits, has at least three cities that have approved the issuance of only either 
off-premises malt beverages or both off-premises malt beverages and offpremises unfortified wine pennits. and has only one city that, 
as of July 1. 1993. had approved the operation of an ABC store. 

(5) Has not approved the issuance of any pennits. borders one of the two largest counties in the State with more than 
940 square miles, has an interstate highway running through it. and has at least six cities that have approved the sale of some malt 
beverages and unfonified wine and four of which have approved ABC systems. 

(6) Borders a county that has approved the issuance of all permits and the operation of an ABC store, meets the county 
description of special ABC area in G.S. 1 8B- 10 1( 1 3a )b. and. as of July 1 . 1 995. had at least five cities that had authorized the issuance 



14:16 NORTH CAROLINA REGISTER February 15,2000 1490 



CONTESTED CASE DECISIONS 



of permits. » 

(7) Borders two states and. as of July 1 . 1995, had only one city that had approved the issuance of permits. 

(8) Has an 18-hole golf course, is in the coastal area as defined in G.S. 1 13A-103, but only because it is adjacent to, 
adjoining, intersected by. or bounded by a coastal sound: which does not allow countywide sales of mixed beverages: which does not 
border another state; with a population of less than 1 5,000 according to the most recent decennial federal census; which does not have 
a city which has authorized the sale of mixed beverages; and which has least two cities with ABC systems. 

4. Petitioner has raised legitimate questions about the constitutionality of G.S. § 18B-1006(k). While G.S. § 150B- 
33(b)(9) states that an administrative law judge may determine that a rule as applied in a particular case is void, there is no such 
provision regarding a statute enacted by the General Assembly. Also, the Respondent Commission has no such authority because the 
North Carolina Supreme Court restated on December 3 1 . 1998. in Meads v. N.C. Department of Agriculture that it is a "well-settled 
rule that a statute's constitutionality shall be determined by the judiciary, not an administrative board." Thus. Petitioner must challenge 
the constitutionality of this statute by an action under the Declaratory Judgment Act and/or seeking judicial review of a final decision 
in this case pursuant to G.S. § I5()B-51. 

5. In denying Petitioner's applications, the Commission did not abuse its discretion, exceed its authority or jurisdiction, 
act erroneously, fail to use proper procedure, act arbitrarily or capriciously, or fail to act as required by law or rule. 

RECOMMENDED DECISION 

It is recommended that the Alcoholic Beverage Control Commission affirni the decision to deny Petitioner's applications 
for ABC permits with the understanding that the Constitutional issues raised herein will be considered upon judicial review in 
Superior Court. 

ORDER 

It is hereby ordered that the agency serve a copy of the tnial decision on the Office of Administrative Hearings. P.O. Drawer 
27447, Raleigh, NC 2761 1-7747, in accordance with North Carolina General Statute § 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions 
to this recommended decision and to present written arguments to those in the agency who will make the final decision. G.S. § 
l50B-36(a). 

The agency is required by G.S. S 1 50B-36(b) to serve a copy of the final decision on all parties and to furnish a cop> to the 
parties' attorneys on record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the N.C. Alcoholic Beverage Control Commission. 

This the 7'" day of January. 2000. 



Fred G. Morrison Jr. 

Senior Administrative Law Judae 



1491 NORTH CAROLINA REGISTER February 15. 2000 14:16 



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